The Issue The issues are whether Respondent failed to accommodate exceptional education students, directed derogatory comments to students, and disclosed test grades in class in violation of Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, whether the proposed penalty is reasonable. (Statutory references are to Florida Statutes (2000). References to rules are to rules promulgated in the Florida Administrative Code in 2000.)
Findings Of Fact Respondent is authorized to teach physical education in Florida pursuant to Florida Educator's Certificate Number 666407. The Certificate is valid through June 30, 2007. The Pinellas County School District (the District) employed Respondent as a physical education teacher at Gibbs High School (Gibbs) during the 2000-2001 school year (the school year). Respondent's students included students in the exceptional student education program at Gibbs (ESE students). Faculty and staff at Gibbs had tested ESE students in Respondent's classes, identified them as disabled, developed an individual education plan (IEP) for each student, and placed each student in a special education program. The IEPs for some students allowed the students to leave the classroom during testing for a learning lab or other supervised environment. Respondent refused to allow several ESE students to leave the classroom during testing. The students are identified in the record as A.A., A.S., J.T., and J.F. in order to protect their confidentiality. Respondent sometimes afforded ESE students an opportunity to hear their tests read to them at the front of the class. That opportunity violated each student's IEP. Respondent did not have discretion to deviate from an IEP. Some ESE students transferred from Respondent's class. Other ESE students refused to enroll in Respondent's class because of Respondent's reputation among ESE students for refusing to accommodate ESE students during testing. A number of parents complained to school officials about Respondent's failure to accommodate ESE students. Faculty and staff attempted to correct Respondent's behavior through informal conferences. A varying exceptionalities specialist, a teacher assistant, and an administrator with the Office of Professional Standards (OPS) each met with Respondent. Respondent answered an allegation and complaint from one parent by stating to a Gibbs administrator that the student was not an honor roll student, so Respondent's refusal to accommodate the student did not make a difference. Respondent complained to an assistant principal at Gibbs that, "They are ESE students. What are they doing here [in Respondent's class]? They shouldn't be here anyway." Respondent made derogatory comments to students during the school year. The derogatory comments included terms such as: fat, little slacker, stupid, sorry bunch of kids, Gomer Pyle, and Dutch Boy. Respondent asked one of her students, "What's a black boy doing with a Dutch last name?" Respondent asked another student if the student was tired from walking the streets at night and called her "sleeping booty." Respondent directed derogatory comments to students identified in the record as D.V., M.F., J.I., and A.W. Respondent referred to D.V., an African-American, as Dutch Boy because D.V.'s last name sounded Dutch to Respondent. Respondent suggested that D.V. should change names with a white student having a last name that Respondent believed was more appropriate for an African-American. Respondent used the terms "fat" and "stupid" when referring to M.F. and other students in M.F.'s class. Respondent used the term Gomer Pyle to refer to J.I. because J.I. was in the Reserve Officers' Training Corps. (ROTC) program at Gibbs. Respondent told A.W. that larger people don't belong in the physical education class. The derogatory comments degraded students, embarrassed them, were inflammatory to some students, and violated District policy. Respondent violated the Code of Ethics and the Principles of Processional Conduct for Educators by making embarrassing or disparaging remarks and by failing to make reasonable efforts to protect students from mental harm. Respondent has made derogatory comments to students in previous school years. During the 1997-1998 and 1998-1999 school years, an assistant principal received complaints from students about Respondent's use of derogatory comments toward students. The assistant principal held a conference with Respondent on September 15, 1997, and completed a Conference Summary that instructed Respondent to use better communication with students and parents; and to be more professional in addressing students. The complaints against Respondent continued. On September 30, 1997, an assistant principal held a formal conference with Respondent to discuss Respondent's use of derogatory comments to students. The assistant principal again instructed Respondent to refer to students only by their given name and use more professionalism in addressing students. An assistant principal met with Respondent on October 1 and 7, 1997; and on February 13, April 1, and May 4, 1998. In addition to several "walk-throughs," the assistant principal visited Respondent's classroom for an evaluation on March 31, 1998. The annual evaluation for the 1997-1998 school year rated Respondent's judgment as an "I," meaning that improvement was expected in addressing students. The "I" on Respondent's annual evaluation required school administrators to prepare a "Success Plan" to help Respondent address the issues that resulted in the "I" rating. The Success Plan that Respondent signed required Respondent to use positive comments that enhance the self worth of students. Respondent's use of derogatory comments toward students continued during the 1998-1999 school year. An assistant principal held conferences with Respondent on: October 12, 26, and 27, 1998; November 11, 1998; and January 28, March 11, Aril 15, May 3, and May 4, 1999. The assistant principal visited Respondent's classroom on: November 3, 1998; and January 28, March 1, March 11, and April 7 and 15, 1999. Respondent's annual evaluation for the 1998-1999 school year contained more "Is" than the previous evaluation. Respondent received an "I" rating for: (1) Instructional Strategies Conducive to Learning and Critical Thinking; (2) Assessment of Students; and (3) Judgment and Professional Ethics. During the school year at issue, the OPS administrator and Respondent discussed a letter from a parent regarding Respondent's use of derogatory comments. The parent complained that Respondent asked H.T., the parent's daughter, if H.T. was going to be a dentist. H.T.'s last name is related to a dental term. Respondent denied she ever made the comment and then told the OPS administrator, "I can look at her mouth and tell you no." Respondent subsequently told H.T. not to go running to H.T.'s mom if H.T. had a problem with Respondent. Respondent read student grades aloud in class without the permission of the affected student in violation of District policy. Respondent also read the names of students receiving a grade of "A," "B," or "C" thereby disclosing the names of students with lower grades. Disclosing the grades of students in class without the permission of the student invades the privacy of the student and exposes the student to embarrassment. Respondent has a history of disclosing student grades in class. On May 17, 2000, the OPS administrator issued a letter of reprimand to Respondent for disclosing student grades during the 1999-2000 school year. In relevant part, the letter of reprimand stated: I advised you that one concern was related to your announcing student grades of students in front of the entire class. You said that the Governor had given schools grades and that you could tell students their grades. I advised you that was not so; that student information was protected and confidential and I directed you to refrain from the practice. You said that you didn't read all of the grades. I noted that students said you read grades of students who had A's, B's, and C's. I said that some students who had lower grades were embarrassed. I again reiterated that you should cease reading the grades. Respondent continued to disclose student grades during the school year at issue. Respondent read to the class the grades of A.A., A.S., A.W., C.A., and M.F. Each had failing grades. Respondent passed a test completed by A.S. down a row of students so that each student could see the test score on the front of the test and stated audibly that the only thing A.S. "got right" on the test was the date. The comment embarrassed, upset, and humiliated A.S. The District placed Respondent on administrative leave in October 2000. After Respondent returned from her administrative leave, the OPS administrator received more complaints about Respondent's behavior, and issued another letter of reprimand to Respondent on April 27, 2001. Respondent wrote the following message on the letter prior to returning the signed copy to the OPS administrator: "This is BS. Thank you [OPS administrator]." The District transferred Respondent from Gibbs to a school where Respondent works with another teacher. The transfer shows that Respondent had lost her effectiveness at Gibbs, but not as an employee. The District had a lot of complaints at Gibbs about Respondent. There were issues with Respondent's effectiveness at the school. The District determined that a transfer to another school might help Respondent "get a new start."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsections 1012.795(1)(c) and (f); guilty of violating Subsection 1012.795(1)(i) and Rule 6B-1.006(3)(a) and (e); suspending Respondent's Florida Educator's Certificate during the summer session after the current school year; and, on the date of the Final Order, placing Respondent on probation for two consecutive years, including the period of suspension, subject to the conditions prescribed in Petitioner's PRO. DONE AND ENTERED this 21st day of October, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of October, 2003. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Robert F. McKee, Esquire Kelly & McKee 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, whether those offenses constitute just cause to terminate his employment with Petitioner.
Findings Of Fact The School Board employed Respondent as a BIA during portions of the 1999-2000 and the 2000-2001 school years. Respondent is not a member of a collective bargaining unit, and the terms of his employment are not subject to the provisions of a collective bargaining agreement. At all times pertinent to this proceeding Respondent was an educational support employee within the meaning of Section 231.3605(1)(a), Florida Statutes. 1/ Respondent attended the School Board's new employee orientation on October 12, 1999. As part of the orientation, a film was presented and a discussion held on the issue of sexual harassment in the workplace. The School Board's sexual harassment policy and its import were discussed at the orientation session. The School Board's Policy 3.19 deals in part with sexual harassment on the job. The policy includes a definition of sexual harassment, prohibits employees from engaging in sexual harassment, and provides that employees found to have engaged in sexual harassment would be disciplined and could lose his or her job. The School Board's Policy 3.19 provides, in pertinent part, as follows: Sexual harassment is strictly prohibited. Sexual harassment has been defined as "unwelcome" sexual advances, requests for sexual favors, and other verbal, written conduct of a sexual nature when: * * * c. Such conduct has the purpose or effect of unreasonably interfering with the individual's work performance, or creating an intimidating, hostile, or offensive working environment. Examples of sexual harassment may include but are not limited to the following: Gestures, letters, notes, invitations, comments, slurs, jokes, or epithets that are suggestive, derogatory, or obscene. * * * d. Continuing to express sexual interest after being informed that the interest is unwelcome. At all times pertinent to this proceeding Respondent was aware of the School Board's policy prohibiting sexual harassment. Respondent's first job assignment as a BIA was at Indian Ridge Center School (Indian Ridge) in the fall of the school year 1999-2000. At Indian Ridge, Respondent worked with teachers to diffuse crises resulting from student misbehavior and worked with students to improve their social skills. Shortly after arriving at the school, Respondent made lewd comments of a sexual nature to Kathy Petrillo, a middle school teacher. He made comments about her body and asked her to go out with and have sex with him. Ms. Petrillo repeatedly told Respondent that she was not interested in him. Despite her efforts to rebuff Respondent, he continued to make inappropriate comments and gestures with sexual overtones to Ms. Petrillo. Ms. Petrillo complained to William Basil, the Assistant Principal of Indian Ridge, about Respondent's inappropriate interaction with her and with other female members of the school staff. During the fall of 1999, Respondent also made inappropriate comments and gestures with sexual overtones to Marlow Belkin, a female teacher at Indian Ridge. Ms. Belkin told Respondent that she had a boyfriend and was not interested in him, but he persisted with inappropriate and unwelcome comments. Respondent's conduct made Ms. Belkin feel very uncomfortable. Ms. Belkin was informed by students that Respondent had a "crush" on her. When she passed Respondent in the hallway, he stared at her. Ms. Belkin complained to Mr. Basil about Respondent's conduct. Ms. Belkin made it clear to Mr. Basil and to Respondent that she wanted no involvement with Respondent. After her complaint to Mr. Basil, Respondent's inappropriate conduct towards her stopped for a while. However, on Valentine's Day, in February of 2000, Respondent sent to Ms. Belkin a vase of carnations. Ms. Belkin refused the flowers after she learned that Respondent had sent them and wrote Respondent a letter, with a copy to Mr. Basil, advising Respondent she wanted no further personal advances from him. While there were no further personal advances from Respondent, he would leer at Ms. Belkin whenever he saw her. Derrilyn Cerbone-Kreling, a female physical education teacher at Indian Ridge, met Respondent for the first time when he began working at her school. Shortly after his arrival, Respondent asked Ms. Cerbone-Kreling if she would like to kiss him, touch him, feel his biceps, and have sex with him. Additionally, when Respondent went to the school's gym to interact with the kids, Respondent displayed his body, lifted up his shirt, and asked Ms. Cerbone-Kreling to be physical with him. Respondent's behavior was consistent towards Ms. Cerbone- Kreling throughout the fall of 1999. Ms. Cerbone-Kreling complained to Mr. Basil about Respondent's conduct. In response to complaints about Respondent's conduct, Mr. Basil advised Respondent in November 1999 that he had to be professional while working at all times and that he must stop making passes towards female co-workers. Mr. Basil received another complaint concerning Respondent's conduct towards female employees in December of 1999. Mr. Basil spoke to Respondent about the allegations and advised him the situation needed to be taken very seriously. He also gave Respondent a written memorandum dated December 21, 1999. In the memorandum, Mr. Basil advised Respondent of the most recent allegations of sexual harassment and also referenced the earlier conversation they had in November concerning the same issue. Mr. Basil specifically referenced the new employee orientation attended by Respondent and the need to maintain a safe and nondiscriminatory working environment. Respondent acknowledged receipt of the memorandum, but provided no other response. On or about May 4, 2000, a professional standards investigation was initiated concerning Respondent, based in part on allegations he had made inappropriate comments towards female employees at Indian Ridge earlier in the school year. Raymond T. Miller, a personnel compliance administrator with professional standards, conducted an investigation of the allegations. On May 18, 2000, Respondent was placed on administrative leave with pay and assigned to his home. After Mr. Miller completed his investigation, a committee of senior administrators reviewed the record of the investigation, including written statements from various witnesses. The committee determined that probable cause existed to sustain the allegations and recommended to the School Board that Respondent's employment be suspended for ten days without pay. The School Board rejected the recommendation as being too lenient. The committee ultimately recommended a 15-day suspension, which the School Board accepted. Respondent served the 15-day suspension, beginning in September 2000, without filing a grievance or any other appeal. Subsequent to serving the 15-day suspension, Respondent was transferred to Seminole Trails Elementary School (Seminole Trails). He began working there as a BIA in October 2000. Shortly after arriving at Seminole Trails, Respondent met Tabitha Lindor, a female School Board employee who worked as a Creole Language Facilitator. Respondent, who had not previously met Ms. Lindor, approached her in the teachers' dining room and made inappropriate comments and gestures about her body. Ms. Lindor was offended by Respondent's comments and gestures and immediately complained to the Assistant Principal and Principal. Respondent's inappropriate comments and gestures towards Ms. Lindor constituted sexual harassment. Madeline Vega also worked at Seminole Trails in October of 2000. She was employed as an attendance clerk, and met Respondent soon after he was transferred there. Respondent made passes at Ms. Vega including asking her to go out with him. Respondent made inappropriate comments about her body and made inappropriate gestures to her. Ms. Vega did not welcome or encourage Respondent's comments and gestures, and she repeatedly told Respondent she would not go out with him. Despite those rebuffs, Respondent's inappropriate conduct towards Ms. Vega continued. Respondent's inappropriate comments and gestures towards Ms. Vega constituted sexual harassment. Following an investigation and recommendation from the management committee that reviewed the investigative report, Superintendent Benjamin Marlin recommended to the School Board at its meeting of December 6, 2000, that Respondent's employment be suspended and terminated, subject to Respondent's right to request a formal administrative hearing. Superintendent Marlin, on behalf of the School Board, filed the Administrative Complaint that underpins this proceeding on December 22, 2000. The School Board's Policy 3.27 pertains to the procedures to be followed in the suspension and dismissal of employees. Those procedures were followed in this proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. _ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2001.
The Issue The issue is whether Petitioner terminated Respondent's annual contract as a teacher for just cause.
Findings Of Fact Petitioner hired Respondent, an inexperienced teacher who had recently graduated from college, and assigned him to teach and serve as an assistant basketball coach at Dixie Hollins High School during the 2000-01 school year. For the 2001-02 school year, Petitioner reassigned Respondent to Tarpon Springs High School, where Respondent assumed the duties of head basketball coach. During both school years, Respondent was on annual contract. Initially, an administrator at Tarpon Springs High School informed Respondent that he would teach American history and economics, which are the subjects that he had taught at Dixie Hollins High School. When Respondent reported for duty at Tarpon Springs High School, administrators did not give him a schedule until a couple of days before classes started. At that time, Respondent learned that, during the first quarter, he was to teach counseling and personal fitness, neither of which he had taught before. He also learned that, the following quarter, he was to teach Freshman Experience, which was a relatively new course, and personal fitness. In the third quarter, he was due to teach earth-space science in place of personal fitness. At least for the first two quarters, Respondent was assigned students in the GOALS program, which is designed for students who have not made substantial academic progress due to social problems. In this program, the students take only four classes per quarter. Each class runs one hour and forty-five minutes, five days weekly. Respondent had difficulties assembling materials for the peer counseling course. Teachers who had previously taught the course were not available. Extensive renovations at the school made it difficult to locate materials for this and other courses. Respondent finally visited a teacher at another school and obtained books, guides, and tests for peer counseling. These materials advised Respondent to help the students learn to settle their disputes peaceably without adult intervention and suggested that the teacher supplement the book with relevant movies dealing with peer pressures, conflict, and social issues. Respondent experienced similar difficulties with the personal fitness course, for which he had books, but no teacher edition or worksheets. However, Respondent's background in athletics presumably prepared him to teach this course. Although Respondent voiced similar complaints about Freshman Experience, he had a quarter to try to obtain materials. Also, no one else at the school had any experience with this course, which the District had abruptly required the high schools to teach. Similar to peer counseling, Freshman Experience is a motivational course that also covers personal and academic issues, as revealed by the titles of the required books, Chicken Soup for the Soul and Ten Steps for How To Manage Time. The seven charges listed in the Preliminary Statement fall into four groups. Charges 1 and 2 are the most serious; they allege that Respondent kissed two students and touched the vaginal area of one of these students. Charges 3 and 4 are also sexual in nature; they allege that Respondent made inappropriate comments to female students about their appearance and inappropriate sexual comments to or in front of students. Charges 5 and 6 pertain to classroom management; they allege that Respondent allowed students to come to his classroom for no legitimate purpose and encouraged students to leave campus to get him food. Charges 7-9 pertain to curriculum, administration, and instruction; they allege that Respondent used noncurriculum-related materials (such as videos), lacked appropriate recordkeeping, and lacked appropriate classroom instruction. Petitioner wisely dropped Charges 6, 8, and 9. No evidence in the record supported these allegations prior to Petitioner's announcement that it was not pursuing these allegations. Charges 5 and 7 require little more analysis. The evidence supports neither of these allegations. Concerning Charge 5, unenrolled students visiting Respondent's classroom included basketball players. While Respondent remained the basketball coach, these players briefly visited the room from time to time to discuss something about the basketball program. Petitioner did not show the extent of these visits or that they were illegitimate. Unenrolled students who were not participating in the basketball program infrequently visited Respondent's classroom. Although the principal testified that one of his assistant principals told him that there was a problem with unenrolled students visiting Respondent's classroom, he added that she rejected his offer to talk to Respondent and said she would handle it. After that conversation between the principal and assistant principal, the principal said the problem was eliminated. Interestingly, though, neither the assistant principal nor anyone else ever talked to Respondent about this issue, which appears not to have loomed large at the time. Concerning Charge 7, Petitioner never proved the rating of any of the films mentioned during the hearing as shown in Petitioner's classroom. Films mentioned during the hearing as shown in one of Respondent's classes include With Honors, Rudy (shown repeatedly), Finding Forrestor, Saving Private Ryan, The Hurricane, [The Mask of] Zorro, and assorted basketball videotapes. The record reflects disagreement among Petitioner's administrators as to the policy concerning the application of the District policy regarding R-rated films. According to the representative of the Office of Professional Standards, The Patriot (apparently an R-rated film) "could" violate this policy, but, according to the principal, who is now handling workforce development in the District office, The Patriot "probably" would not be a problem. Even if The Patriot were a problem, as an R-rated film, it would be so only if Respondent had not obtained permission slips from parents to show this and perhaps other R- rated films. Respondent testified that he did so. Notwithstanding the testimony of one student to the contrary, Petitioner never proved that Respondent failed to obtain permission slips. The issue of the relationship, if any, between the films and the courses fails because Petitioner failed to prove the contents of the films or to prove adequately the prescribed content of the courses, so as to permit a finding that the films were irrelevant to the courses. The broad outlines of peer counseling in particular, at least as established in this record, would appear to accommodate a vast array of films. A sufficient number of students testified in sufficient detail to a broad array of bookwork, class discussion, and other instructional and assessment methods in both peer counseling and Freshman Counseling to overcome whatever proof that Petitioner offered in support of Charge 7. The crux of this case lies in the charges involving sexual improprieties, as alleged in Charges 1-4. The quality of proof was considerably different between Charges 1 and 2, on the one hand, and Charges 3 and 4, on the other hand. Analyzing Charges 3 and 4 first may help explain the findings as to Charges 1 and 2. Concerning Charges 3 and 4, Petitioner proved that Respondent made numerous inappropriate comments to female students, of a sexual nature, that understandably made the students feel uncomfortable. Respondent directed three of these comments and one behavior to T. R., a junior. While walking around the track during the personal fitness class that T. R. was taking from Respondent, he asked her what she thought of a 26-year-old dating an 18-year-old. T. R. was either 18 years old or Respondent implied that the dating would await her 18th birthday; either way, T. R. reasonably believed that Respondent meant her. Although actually 29 or 30 years old at the time, Respondent typically told his students that he was only 26 years old, so T. R. reasonably believed that Respondent meant him. T. R. was so uncomfortable with this question that she mentioned it to a female teacher at the school, Cheryl Marks- Satinoff. Thoughtfully considering the matter, Ms. Marks- Satinoff found that the question was "odd," but not "extremely inappropriate" and "on the fence." Ms. Marks-Satinoff's characterization of the question, in isolation, is fair. In the context of other comments to T. R. and other female students during the relatively short period of two school quarters--little else, if any, of which was Ms. Marks-Satinoff was then aware--the comment acquires its proper characterization. To T. R., Respondent also said, "If I were still in high school, I'd be climbing in your window at night." T. R. was "shocked" by this comment, but her mother or stepmother, when told by T. R. about the comment--again, in isolation--did not attach much importance to it. On another occasion, when a female student asked why T. R.'s grade was better than D. P.'s grade, Respondent replied, "T. R. and I have an agreement." While taking Respondent for personal fitness, T. R. found Respondent staring at her repeatedly. Accordingly, T. R. switched from stretch pants to baggies. T. R.'s testimony is credible. She spoke with adults about two of the comments roughly at the time that they were made. Also, T. R. bore no grudge against Respondent. She said that she did not think twice about the dating comment, although she obviously gave it enough thought to raise it with Ms. Marks- Satinoff. T. R. freely admitted that Respondent made the comment about crawling into her window in a joking manner. She discredited D. P., who is the alleged victim of the most serious sexual incident, discussed below, as a person who always lies, convincingly. T. R. added that D. P. told her once that Respondent "tried" to kiss her and put his hand up her skirt and did not understand why D. P. confided in her initially. T. R. testified that she never heard Respondent do or say anything inappropriate in the personal fitness class that she took with D. P. T. R. testified that Respondent made her and her friends leave if they disturbed his class the few times they got out of their assigned class to visit his office and watch movies. T. R. described another female student, B. H., who testified to several inappropriate comments made by Respondent, as someone who "likes to stir the pot." To A. T., an 18-year-old who graduated from Tarpon Springs High School in June 2002, Respondent alluded to the size of her breasts, in front of the class, and used his hands to frame them. Although done in connection with a warning that A. T. was violating the school dress code due to the revealing nature of her shirt, Respondent delivered this warning in a sexual manner that was obviously unnecessary for the purpose of reminding the student to conform to the dress code. A. T. testified that she liked Respondent as a teacher, but he made her uncomfortable, and he should be more a teacher than a friend. Like T. R., A. T. seemed not to bear any negative feelings toward Respondent, but instead merely seemed to be describing an insensitive incident as it happened. To N. S., a junior at the time, Respondent said, upon learning that she had surgically implanted rods in her back, that he wanted to have sex with her. N. S. testified that she was not bothered by the remark. N. S.'s testimony is credited. She was friendly toward Respondent and had long dated Respondent's teacher assistant. To A. M., Respondent said that she looked pretty and could get any guy she wanted. A. M.'s testimony is credited. She did not have much interaction with Respondent and was not part of any group interested in causing him trouble. She seems simply to have truthfully reported an ill-advised comment that Respondent made to her, although she did not describe her reaction to the comment. To L. D., Respondent said that he had a bracelet of hers that she had lent him and that, whenever he looked at it, it reminded him of her. L. D. felt uncomfortable about this remark. L. D. also testified that Respondent sometimes tried to get the boys to treat the girls with respect, and her testimony is credited. Other witnesses, especially D. P. and B. H., described other comments, but their credibility is poor, and their testimony cannot be credited. The demeanor of two witnesses favorable to Respondent revealed something bordering on exasperation with him, even as they testified that he never said anything sexually inappropriate in class. The demeanor of each witness was consistent with someone who believed that Respondent was only joking around in class, when making sexually charged comments, and had suffered more than enough due to the consequences of lies told by two female students, as described below. In isolation, the comment about having sex with a student with orthopedic rods in her back is sexually offensive, as is the sexual comment and gesture framing a female student's breasts is sexually offensive. The comments about the agreement between T. R. and Respondent, the bracelet reminding Respondent of L. D., and A. M. being able to sufficiently pretty to get any boy are not sexually offensive, in isolation, but, even in isolation, betray a tendency by Respondent to regard certain of his female students as females more than students. With the exception of the comment to A. M., all of the comments, gesture, and behavior, in the aggregate during a relatively short period of time, depict a transformation by Respondent of the relationship between a teacher and several of his students to a more ambiguous relationship, at times resembling the relationship that might exist between these girls and the boys with whom they attended high school. Nearly all of these incidents embarrassed the female students; all of them, except perhaps A. M., reasonably should have been embarrassed by them. Several of these incidents suggest that Respondent regarded these female students as available for him in some role other than that of student--for instance, as females with whom to flirt. Petitioner has proved that Respondent exploited these female students, with the possible exception of A. M., for personal gain. This characterization of these comments, gesture, and behavior is confirmed by Respondent's implausible assertion that all of these students, except N. S., are lying. If confident that the comments, gesture, and behavior were innocuous or at least not improper, Respondent could have gained credibility by admitting these incidents and explaining their innocence. With one exception, Petitioner has not proved that Respondent sexually harassed or discriminated against his female students or these students in particular. The record does not suggest any quid pro quo in the sexual incidents, although the agreement with T. R. approaches the type of proof required. Nor does the record suggest that the sexual commentary, gesturing, or behavior were so pervasive as to create a hostile environment. Two students, N. S., A. M., and L. D., were each the subject of a single comment. One student, A. T., was the subject of a single incident, which consisted of a comment and gesture. On this record, Petitioner failed to prove that Respondent's treatment of these students rose to harassment or discrimination of them or of his female students in general. However, Respondent's treatment of T. R. rose to harassment and sexual discrimination because he made three sexually inappropriate comments and engaged in one sexually inappropriate behavior that caused her to alter her mode of dress. Respondent implicitly asked her to think about dating him--now or later--with the comment about a 26-year-old dating an 18-year-old. Respondent implicitly identified the possibility of their having sex with the comment about climbing in her window. Respondent alluded to the possibility of sex between T. R., a student, and himself, a teacher with the power of the grade, with the comment about her grade resulting from an agreement. And Respondent leered at T. R. sufficiently to cause her to change her workout clothes. In partial mitigation of the sexual comments, gesture, and behavior, but not the harassment or discrimination, no one seems to have provided Respondent with any timely feedback on this manner of interacting with certain female students. The only reports to adults seem to have been of isolated comments. In addition to the two reports noted above, a male student reported inappropriate comments, midway through the first quarter, to the teacher who was head of GOALS. Although the teacher did not describe the inappropriate comments, she said that she talked only to the two female students involved and evidently decided that the matter was not sufficiently important to discuss with Respondent or the administration. As noted above, Ms. Marks-Satinoff learned from T. R. of a borderline inappropriate comment. Sometime later, in January, she spoke briefly with Respondent and advised him to watch inappropriate comments. This marks the only feedback, and it was too late to alter the course of events. However, for the same reason that this lack of feedback does not mitigate at all the harassment and discrimination involving T. R., the value of this mitigation is largely undermined by the fact that the knowledge of the need to refrain from improper personal references to students is not granted only to the most experienced teachers or administrators. Perhaps Respondent was not fully aware that his comments, gesture, and behavior were sexually charged and did not realize the effects of these comments, gesture, and behavior on his students, as some teachers may not be fully aware of their sarcasm and its effect on their students. However, Respondent, as a teacher, remains responsible for determining the effect of his interaction upon his students and ultimately must bear the consequences if he fails to identify the problem. D. P. is the complainant in Charge 1. She was born in September 1984 and was a senior during the 2001-02 school year. Respondent taught her peer counseling during the first quarter and personal fitness during the second quarter. D. P. testified that on Monday, January 14, 2002, she approached Respondent to ask if she could exempt a final exam. She testified that he said to return after lunch. When she did, she testified that they met in his office where he kissed her and moved his hand up her leg until he digitally penetrated her vagina. D. P.'s testimony is unbelievable for several reasons. First, two different students testified that they heard her say that she would get Respondent into trouble. One of the students testified that he heard her say this immediately after an argument D. P. had with Respondent over absences and tardies. D. P. was upset with Respondent because her numerous absences and tardies prevented him from exempting her from the final examination in his class. D. P. did not tell anyone of the alleged incident until immediately after she found that she could not obtain an exam exemption from Respondent. Second, D. P.'s testimony is unusually inconsistent with other statements that she has given. Some inconsistencies are not fatal to credibility, but the number and importance of inconsistencies in her testimony and statements preclude a finding of credibility. Numerous material discrepancies exist between D. P.'s testimony at the hearing and her testimony in a prehearing deposition. Other discrepancies exist between her testimony at the hearing and earlier statements given to law- enforcement officers or made to others. These discrepancies include differences of two hours as to when during the day the incident occurred and one day as to which day on which it occurred. D. P.'s implausible implication is often that the persons taking down her version of events made a mistake. Third, D. P.'s testimony is improbable. First, Respondent was aware of the investigation into his dealings with female students by the morning of January 14. The investigation was already underway by the end of the prior week. For instance, D. P. had given her first statement on January 11. It is unlikely that Respondent would engage in such egregious sexual abuse of a student while he knew that he was under investigation. Second, Respondent's teacher assistant testified that he was in the office during the entire time that the incident supposedly would have taken place, and he never saw D. P. Fourth, D. P. has a poor reputation for honesty among her peers who know her well. D. P. testified that she told several persons about the sexual abuse, but they all denied such conversations. At one point during her testimony, she stated that everyone at school had his or her own opinion concerning rumors as to with which student Respondent was accused of having an improper relationship. As she testified, D. P. seemed clearly to have relished the attention that she had gained by making the charge. S. Y. is the complainant in Charge 2. S. Y. was born in April 1987 and was a sophomore during the 2001-02 school year. She was a student of Respondent. She testified that Respondent taught her Freshman Experience during the third quarter, although she was not a freshman and Respondent did not teach very long into the third quarter before he was terminated, as described below. S. Y. testified that Respondent kissed her one day while they were alone in his office. A number of reasons exist that undermine the credibility of this assertion. First, S. Y.'s testimony is also unusually inconsistent with other statements that she has given. At different times, she has attested that the kiss occurred between Thanksgiving and Christmas, before Thanksgiving, and in January. Second, S. Y.'s timing in reporting the kiss is suspect. First, three times she told investigators nothing about a kiss. Second, she reported the kiss only after she knew that D. P. had accused Respondent of sexual improprieties. S. Y. admitted that emotions were running "sky high" at the time. Unlike D. P., who did not like Respondent, S. Y. liked him, at one time even having a crush on him. S. Y. appeared capable of jealousy regarding her feelings about Respondent, as evidenced by the following facts. Third, S. Y. reported the kiss immediately after he referred her to the office for abruptly interrupting his class and loudly demanding that he tell her who else he was "fucking." Although she denied knowledge that Respondent was having sexual intercourse with any students, including herself, S. Y. admitted that the referral prompted her to report the kiss to an investigator. Fourth, S. Y. engaged in embellishment concerning her relationship with Respondent, as would be consistent with a fantasy attachment to him. Although S. Y. implausibly denied it, she told Ms. Marks-Satinoff that she had been to Respondent's home, which was in a poor section of Clearwater. Respondent's home is not in a poor section of Clearwater. S. Y. also has said that Respondent proposed that she and another girl perform in a porn movie that he would make. The reality is either that she proposed it to Respondent, who told her never to suggest such a thing again, or that a former boyfriend proposed the porn movie--without Respondent's involvement. For the reasons listed above, it is impossible to credit the testimony of D. P. or S. Y. that Respondent sexually abused them. Although the presence of multiple accusations of this type may sometimes be indicative of their reliability, they are more likely due to Respondent's sexual banter and flirtation and repeated failure to maintain appropriate boundaries between the professional and the personal. Both D. P. and S. Y. were doubtlessly aware of Respondent's tendencies in this regard, and, from this sexually charged atmosphere, which Respondent himself had helped create, they struck back at Respondent by making sexual allegations. D. P. chose to strike out at Respondent for not granting her an exemption to which she was not entitled, and S. Y. chose to strike out at Respondent for referring her to the office and not meeting the unrealistic expectations that she and her infatuation on Respondent had generated. Shortly after D. P. and possibly S. Y.'s charges emerged, law enforcement officers arrested Respondent, who remained in jail for nine days. In June 2002, the state attorney's office dropped the charges, although D. P. testified at the hearing that she intended to sue Respondent and Petitioner. Petitioner then terminated Respondent's employment six weeks prior to the end of the term of his annual contract. A proper penalty must reflect the nature of the offense and its impact on the students. Some students who were the subject of improper comments, gesture, and behavior denied embarrassment. Of those admitting to embarrassment, it does not seem to have been traumatizing or even especially painful. Not entirely without reason, some of the students implied that Respondent had already suffered enough, having been fired and served nine days in jail on accusations that were not established on this record. Also, the mitigation discussed above, as to the failure of authority figures to provide Respondent with timely feedback as to the improper comments, gesture, and behavior, but not harassment and discrimination, plays a role in setting the penalty. Petitioner's representative from the Office of Professional Standards testified that Charges 3 and 4 would suffice to warrant dismissal, depending on the frequency of the improper comments. The improper comments warrant, at most, an unpaid suspension of three days, but the harassment and discrimination involving T. R. warrant a more serious penalty. In the absence of the other sexually inappropriate comments and gesture, the harassment and discrimination involving T. R. probably would warrant a long suspension. However, two facts warrant termination. First, the harassment and discrimination involving T. R. are accompanied by the sexually inappropriate comments and gesture involving the other students. Second, still not grasping the requirements of a professional's proper relationship toward his students, Respondent has continued, implausibly, to deny all of the sexually inappropriate comments, except for an admission of a vague version of the comment about the orthopedic rod in N. S.'s back. By branding these students liars when he himself is lying, Respondent makes the case for Petitioner that termination is the proper remedy.
Recommendation It is RECOMMENDED that the Pinellas County School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 13th day of February, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2003. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942
The Issue The issue in this case is whether just cause exists to discipline Respondent based on allegations that she used inappropriate language when talking to students in violation of the Code of Ethics and/or the Principles of Professional Conduct, and if so, what discipline should be imposed.
Findings Of Fact The School Board is responsible for hiring, firing, and overseeing all employees for public schools within Duval County. In addition to the regular K-12 classes, the School Board has created the Bridge for Success program. The Bridge operates at eight sites within the Duval County school system. One of those sites is Ribault High School (“Ribault”). The Bridge is a new program, created to assist students who have fallen behind their chronologically-aged peers due to academic or other problems. The program is an innovative approach aimed at helping students who have fallen behind catch up with their peers and graduate from high school at about the same time as others of their same age. Many of the students in the Bridge program have behavioral issues as well as academic struggles. They can be a difficult group of students to teach. The goal of the Bridge program is “to promote and graduate” those students, to improve their attendance, and to teach them how to function as students. At its inception, there were 864 students in the program, distributed among the eight campuses. There were 108 students assigned to Ribault. By the end of the first school year, only 75 to 80 students remained in the program at Ribault. Some students had dropped out of school, some had moved to a different school, and it was difficult midway through the school year to replace those who had left. At all times relevant hereto, Quiller was a math teacher in the Bridge program at the Ribault location. She was hired for that position just prior to the 2013-2014 school year, the final year of the Bridge program. She had been teaching in the Duval County school system as a mathematics teacher for 21 years. Quiller is a graduate of Ribault and has very strong ties to the school. Quiller was chosen as a teacher for the Bridge program for many reasons: she was a graduate of Ribault and held a special place in her heart for the school and its students; she was certified in grades six through 12 for math, a less than common certification; she had a master’s degree in Guidance, giving her a better background and training for facing the Bridge students; she had been previously assigned to an alternative school for behavioral problem students; and, she demonstrated the kind of caring personality necessary for the challenges of teaching such students. When Quiller was hired, she mistakenly thought her position would be in the area of guidance. However, she was hired to teach math, partly in recognition of her status as a certified teacher in that area. She was hired to teach several math classes in the Bridge program, including Algebra I and II, Math for College, and Geometry. At the beginning of the 2013-2014 school year, the Bridge was not entirely ready for implementation at Ribault. There was a shortage of books and other materials and the program had not yet filled all the required staff positions. The start- up of the program was a challenge for both the teachers and school administrators. Also, the students in the Bridge program were not always cooperative or interested in school. No one denies that it was a difficult situation for all involved. Despite the lack of materials and adequate staff, Quiller’s classes began relatively well. She was a very strict teacher, demanding participation by all students regardless of their level of interest. She expected and required each student to be fully prepared when they entered the classroom. For example, the students were expected to have pen/pencil and paper, to have their homework completed, and to be ready for class. She was, however, very frustrated at times because many of the students seemed to ignore the fact that they were being given a second chance. They continued to demonstrate the kind of behavior that caused them to fall behind in the first place. As a result of their behaviors, many of the students in her classes were failing. Most of the students who testified at final hearing were in agreement that the classroom was fairly unruly, but agreed that Quiller was a stern disciplinarian and reacted promptly to quell any disruptions. Conversely, one student said the class was always quiet and that Quiller would make anyone making noise leave the classroom. Principal Davis began getting some complaints about Quiller beginning in September 2013, a month or so after commencement of the school year. The first complaints were relayed to her from assistant principal Micheau. During the first pep rally of the year (in late August), Micheau had been sitting with a group of students who were being disciplined and therefore, could not attend the rally. The students brought up unsolicited complaints about Quiller, saying that Quiller had used profanity towards her students. Micheau relayed these allegations to Principal Davis and Davis instructed Micheau to meet with Quiller and remind her that such language was not acceptable. Micheau met with Quiller and attempted to explain-- without being accusatory--that it was improper to use such language in front of students. Quiller denied ever having used inappropriate language with students; Micheau took Quiller at her word at that time. Sometime later, Micheau heard loud talking emanating from Quiller’s classroom area. When she investigated, she saw Quiller standing in the hallway next to her room. She was yelling loudly at a student and was obviously very upset. Micheau attempted to call her over and calm her down, calling out her name over and over, “Ms. Quiller. Ms. Quiller. Ms. Quiller.” Quiller yelled at Micheau to reprimand the student rather than her, saying, “You [Micheau] need to talk to these damn kids!” Micheau, shocked at Quiller’s language and her anger, removed the student from the classroom, and went back to her office. A few weeks later, Micheau was in her office adjacent to Quiller’s classroom. She and Rita Franklin, who was at the school that day as a School Improvement Coach, heard a loud commotion outside the office and went to investigate. When they came out of the office, they saw the school security guard already moving toward the sounds emanating from Quiller’s classroom. Upon arrival at the classroom, Micheau and Franklin heard Quiller talking very loudly to her students. She threatened to throw one student’s test paper into the trash. She told the students that the work they were being asked to do was third-grade work and they still could not get it right. She referred to the students as “hooligans” or “hoodlums.” When Quiller saw Micheau and Franklin outside her door, she reduced the volume and changed the content of her comments to the students. Quiller’s demeanor and actions were inconsistent with professional behavior by a teacher. Quiller denies making any of the alleged statements, except for the comment about some of the work being third-grade level. According to Quiller, that comment was made about some supplemental work she had assigned to an algebra project; she told the students it was third-grade work so they should not be intimidated by it. As to the comments about being flunkies, Quiller maintains that all she said was that the boys were flunking her class, although that would not have been an appropriate thing to say in front of other students. While Quiller seems to be generally honest and forthright, the most credible evidence is that she made remarks to the students along the lines of what Franklin and Micheau reported. Crimley, the security guard who was also present during one of the outbursts, heard Quiller say something about “getting this kid out of my damn class.” Crimley usually went into Quiller’s classroom three-to-five times a day but never heard her curse at students during those visits. Crimley attempted to testify at final hearing that some students had recanted their accusations against Quiller because “it had gone too far” and they did not want Quiller to be sanctioned. That testimony was not allowed due to its hearsay nature, but it is also inconsistent with the testimony of the students who testified at final hearing. On another occasion, Quiller was talking loudly to a student named Wayne and one or two other male students. The boys were doing some sort of vulgar dance and were attempting to enter the classroom at about the time the tardy bell was ringing. Quiller said something to the effect of “you are a bunch of flunkies and you need my class” and “your dirty ass can’t come into my class.” Both Micheau and another teacher, Ms. Crowden- Richardson, heard those comments. By the end of the first semester, i.e., about the time of the winter break from school, Principal Davis began getting additional complaints from students and their parents about Quiller. T.C., who was likely about to fail Quiller’s class, remembers hearing Quiller saying such things as “you kids can’t remember [sh--],” and “[N---s] always coming into my class and sleeping,” and she said students were coming into her class when high on drugs. C.F., who had a D and C on his first two grade reports from Quiller's class, heard Quiller say, “Y’all don’t do [sh--],” and also that students had been “smoking weed.” A.P., a D and F student in Quiller’s class, reported that Quiller told the class to “shut the [f---] up,” told kids to get their “ass” out of the classroom, and referred to students as “[N---s].” A.P. said these things were not yelled in anger, but in a normal tone of voice. F.H., an admittedly problem student, remembers Quiller telling a student to “Sit your ass down and come to class on time.” She also heard Quiller say, “[N---], please,” or some such comment. None of the aforementioned students’ testimony was individually very persuasive. Each of the students was struggling in class and had received their poor grades just prior to the time of the comments they reported hearing. It is certainly possible they had an axe to grind with Quiller. One student (D.R.) who testified that he never heard Quiller make such comments was passing the class, had regular attendance, and generally commended Quiller for being strict and stern with problem students. Nonetheless, the students’ description of Quiller’s comments and behavior was fairly consistent. The things they reported Quiller saying were very similar to contemporaneously written statements from them and other students. The alleged remarks were similar in nature to one another but not exactly the same, so the comments did not seem rehearsed or planned. The students were very direct and unwavering when testifying at final hearing. The greater weight of the evidence supports the contention that Quiller used inappropriate language in her classroom. In the letter notifying Quiller of her termination from employment, it is alleged that Quiller made the following inappropriate communications: “Kids do not do [sh--],” “You all should know this [sh--] already,” “Shut the [f---] up,” “Get out of my [f---ing] class,” “You do not do your [f---ing] work,” “You little [N---s],” and “You are all some lazy [N---s] for coming to class late.” There was not enough credible testimony to support all of the allegations that each of those things was said to students or in the presence of students. There was, however, sufficient evidence to support that some of those statements had likely been made. The contemporaneous written statements by students and staff support the verbal recollections made at final hearing, at least in part. While the students were making disparaging comments about Quiller, she was in turn making complaints to school administration concerning the program. She lamented the lack of materials and raised concerns about her own safety in the classroom. More than once, Quiller walked out of her classroom as she became too frustrated to teach. It was undoubtedly a very difficult situation for Quiller and other teachers. All in all, the Bridge program had elements of success as well as some problems. Some of the students were able to graduate with their classmates, some were able to catch up to those in their age cohorts, and some came to the realization that school simply would not be appropriate for them. The program gave students a good chance to make up for past failures. But it was not a panacea and did not work for everyone. Quiller asked that certain students be removed from her classes because she believed they were poisoning the other students. Some were removed, some were not. Quiller gave far more D's and F's to her students than other teachers in the program. Many of her students began to receive passing grades after Quiller was replaced, however. Quiller maintains that the low grades were given because the students earned them, i.e., they were not issued as punishment or retribution for bad behavior. But the students’ subsequent success under a different teacher suggests otherwise. Quiller appeared unemotional and stoic when discussing the allegations against her. Some of her responses to questions at final hearing seemed to be aimed at avoiding the allegations rather than denying them. She had undeniably been placed in a very trying and vexatious situation and tried to make the best of it, but she very well may have crossed the line at times with her words and behavior. It is impossible to place oneself in the environment in which Quiller was working, but it is easy to see that the classroom problems she faced could drive a person to outbursts on occasion. As opined by Davis and Micheau, there is never a valid reason to curse at students, but there are times when doing so could be more understandable. Quiller had been reprimanded in the past for using profanity in the presence of students. She received discipline on two separate occasions for her language. While she denied the allegations, there is some support for the premise that Quiller, on occasion, used profanity around or directly to her students. Even those who support her recognized that Quiller would sometimes use profanity, albeit fairly innocuous and restrained in nature. There is a strong suggestion in the testimony that Quiller was using such language in the hopes it would resonate with these students, described as the worst of the worst. However, there is no acceptable rationale for using such language around students. Quiller was placed in an almost untenable situation with the students assigned to her classes. They were unruly and generally well behind academically. She did not have all the tools needed to work with the students and her classes were too large. Nonetheless, she was expected to maintain her composure and professionalism. While that is easy to say without “walking a mile in her shoes,” it is still a prerequisite for teaching that the teacher act professionally and not do anything to disparage the students. Quiller was by all accounts a good teacher prior to her involvement in the Bridge for Success program. She received a most difficult teaching certification and had favorable annual reviews for most of her time as a teacher. She was sought and hired as a teacher at Ribault on the basis of her distinguished career and training. She is not a bad person or a bad teacher. However, she succumbed to a harsh situation and failed to maintain her decorum. Quiller’s prior disciplinary history included the following: December 2001--A written reprimand (Step II discipline) for using profanity in the presence of students; April 2013, 11 years later--A verbal reprimand (Step I) for making an inappropriate comment to a student; October 2013--A written reprimand (Step II) for using profanity and derogatory language in the presence of students; and February 26, 2014--The notice of termination at issue in the present case (Step IV). The School Board began its recent discipline of Quiller with a Step I verbal reprimand followed by a Step II written reprimand. Due to the nature of Quiller’s conduct, the School Board did not believe it had to follow the Step II discipline with Step III discipline, i.e., suspension without pay. Rather, it went directly to the most severe and extreme level of discipline, Step IV--Termination of employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Duval County School Board, rescinding its termination of the employment of Joyce Quiller and, instead, suspending her for a period of time without pay and reassigning her to a less-challenging position. DONE AND ENTERED this 16th day of July, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 16th day of July, 2014. COPIES FURNISHED: Wendy Byndloss, Esquire Assistant General Counsel City of Jacksonville Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Stephanie M. Schaap, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Dr. Nikolai P. Vitti, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003),2 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(h), and 6B-1.006(4)(e), and, if so, what discipline should be imposed.
Findings Of Fact Hayes holds Florida Educator Certificate 769153 for teaching sociology, grades six through 12. His certificate was valid through June 30, 2004. At all times relevant to the allegations in the Administrative Complaint, Hayes was employed as a science teacher and, later, as a substitute teacher with the Polk County School District. During 1998, R.H. was a sixth-grade student at Fort Meade Middle-Senior High School. Hayes was her science teacher. While a student in Hayes' class, Hayes made inappropriate remarks to R.H. on a daily basis such as: "You're so pretty. You're so special. You don't know how special you are." Hayes asked R.H. if she had a boyfriend, and, when she told him that she did, he became upset and told R.H. that he was going to call her parents and tell them. He also wrote her a letter telling that she was too young and too pretty for the boyfriend. Hayes told her that she did not need a boyfriend and that the boy was a troublemaker. On a daily basis, Hayes would ask R.H. to run errands for him. He did not ask other students in R.H.'s class to run errands. Hayes would also try to keep R.H. after class. At times he would tell her that she needed to stay after class so that she could see how she was doing. R.H. maintained an "A" in his class, so there was really no need for her to stay after class. Hayes' special attention to R.H. embarrassed her, especially when other students would tease her about Hayes being her boyfriend. Hayes made her feel uncomfortable and distracted her in class. One day when Hayes asked her to stay after class, she confronted Hayes about his unwanted attentions and told him that his actions made her feel uncomfortable. He became angry with her and asked her to leave the classroom. After their confrontation, Hayes' attitude toward R.H. changed. He asked R.H. to stay after school again and told her that if she did not stay that he would give her a detention. During 1998, J.R. was a student in Hayes' sixth-grade science class at Fort Meade Middle-Senior High School. During the first six weeks of class, J.R. and Hayes had a normal teacher-student relationship. However, by the second six weeks of class, Hayes had begun to lean close to J.R. while she was at her desk. During class, he would play with her hair, take her hair scrunchies, and purposefully step on her feet. Hayes began to ask J.R. to stay after class. The first time that he asked her to stay he gave her a hall pass on the back of which he had written that he "really, really liked" her. He held her after class so that he could talk to her about non- school activities. For example, he would tell her that she was beautiful and that she was an angel. Hayes would ask her if she had any boyfriends and tell her that she did not need to mess with boys because they only wanted one thing. Because Hayes required her to stay after class, J.R. would miss her school bus. She missed her bus so many times because of Hayes that her mother threatened to discipline her if she missed the bus again. Hayes began to write letters to J.R. when she was in the sixth grade and continued to write to her for the next couple of years. At first his letters were written in third person. For example, he wrote: I saw your friend yesterday, he misses you sooooooooooo much! He's been waiting and waiting and waiting for the letters you promised him. He is sooooo crazy about and was soooooo happy that you made all A's. You make him so proud, He LOVES YOU 4-LIFE. As their relationship progressed, Hayes began to write in first person, professing his love for J.R. Hayes wrote that she could trust him, that he missed her, and that they were going to have a great future together, including beautiful children. He wrote to her that he was the best thing that had ever happened to her. His letters to J.R. contained other inappropriate remarks such as: "I'm 'crazy' about you because you drive me 'crazy' at times. I wake up at 2:30, 3:30, 4:30 AM thinking about you."; "You looked good on Friday. I hope you let your hair grow back (PLEASE, PLEASE) Those shorts you had on was [sic] toooooooo short. I can't believe they didn't make you change."; and "I can't stop staring at you, there's nothing in this world more beautiful than you!" When J.R. was in the seventh grade, Hayes promised to marry J.R., and they began a sexual relationship. Hayes would pick J.R. up and take her to his house, and sometimes they would have intimate relations at her home when her mother was not present. Their sexual relationship continued until J.R. was in the tenth grade. Unbeknownst to J.R.'s mother and without her permission, Hayes picked up J.R. in his car on May 21, 2002, and drove her to Brandon, in Hillsborough County, Florida. They had lunch, and J.R. had her nails done. On the way back to Polk County, where J.R. lived, they were stopped by a deputy sheriff. Hayes told J.R. to tell the deputy that they were just friends or he could get in trouble and go to jail. At first, Hayes told the deputy that he was dating J.R.'s mother, which was untrue. After the May 21, 2002, incident occurred, J.R.'s mother wrote Hayes and told him to refrain from contacting her daughter. However, Hayes continued to contact J.R. and continued a sexual relationship with her until September 2002. During their relationship, Hayes gave J.R. gifts, including mugs with candy, jewelry, clothes, and bath and body products. Based on the types of gifts, it is clear that the purpose of the gifts was to facilitate their romance. J.R. is embarrassed by her relationship with Hayes and feels that he took advantage of her. She was distracted by his behavior, which affected her ability to concentrate in school. Their relationship has hindered her ability to develop relationships with people her own age. During the 2000-2001 school year, A.B. was a ninth-grade student at Frostproof Middle-Senior High School, and Hayes was a substitute teacher at the school. A.B. had attended approximately five classes in which Hayes was substituting. A.B. played softball and volleyball at school. Hayes sent her e-mails two or three times about her athletic endeavors. A.B. felt that the e-mails were social and not school-related and thought it was "weird" that a teacher she did not really know was sending her e-mails. On Valentine's Day in February 2001, Hayes told A.B. that he had left a bag in a classroom for her and that he wanted her to pick it up. A.B. got the bag and it contained a pink candle with a heart on the top and a book entitled Kisses. The book contained pictures of people kissing. A.B. was embarrassed by the gift and thought that it was unusual for a teacher to give a student such a gift. Based on his gifts, she felt that he wanted to have a physical relationship with her. On the day that she received the gifts, she told her physical education teacher, Coach Bolin, that she had gotten the gifts, but that she could not tell who gave them to her. The next day she told Coach Bolin that Hayes had given the gifts to her. Coach Bolin reported the incident to the principal. After she reported the incident, Hayes did not return to substitute at Frostproof Middle-Senior High School and was removed from the list of approved substitute teachers at the school. Coach Bolin did not want to continue working with Hayes after the incident. She felt that it was completely inappropriate for Hayes to give A.B. the gifts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Delton B. Hayes violated Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a), (e), (h), and 6B-1.006(4)(e) and permanently revoking his educator certificate. DONE AND ENTERED this 12th day of November, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2004.
The Issue The issue is whether Petitioner properly determined that Respondent's employment as a continuing contract teacher should be terminated.
Findings Of Fact Petitioner operates, controls, and supervises the public schools within Nassau County, Florida. Respondent graduated from the University of Florida in 1978 with a Bachelor of Arts degree in English. She began working for Petitioner in the 1980/1981 school year at Emma Love Hardee Elementary School. That year, Respondent gave Petitioner an out-of-field assignment as a teacher of emotionally handicapped students. Respondent received her Master of Arts degree in Special Education from the University of North Florida in 1985. She began working as an Exceptional Student Education (ESE) instructor at Fernandina Beach High School in the 1983/1984 school term. Beginning with the 1999/2000 school year, Respondent's primary teaching assignment was as a performing arts instructor at Fernandina Beach High School. Respondent worked in that capacity until the 2006/2007 school year when she became a full- time English and ESE co-teacher. For the 2007/2008 term, Respondent taught English III and English IV. In 2008/2009, Respondent worked as a regular education English teacher. She also served as an ESE co-teacher for intensive language arts. Jane Arnold began working as Principal at Fernandina Beach High School for the 1998/1999 school term. Ms. Arnold completed a performance appraisal of Respondent in 1999 that resulted in an overall unsatisfactory rating. Of particular concern to Ms. Arnold in the 1998/1999 appraisal was Respondent's problem with completing documentation of lesson plans, including daily instructional strategies as well as specific examples showing how the subject matter would be delivered. The failure to provide proper lesson plans made it difficult to know whether Florida's Sunshine State Standards were being met. Respondent was also having problems with grading students' work and recording the grades. Student work papers were disorganized and some papers were missing. Therefore, it was hard to discern what work was completed and when it was completed. The failure to timely grade and record students' work made it difficult for students to know what they needed to do to improve. Ms. Arnold subsequently placed Respondent on a professional development plan (PDP). The one-page PDP required Respondent to improve three job-service categories. After Respondent satisfactorily completed the PDP within the prescribed 90-day period, Ms. Arnold recommended that Respondent's employment continue. Respondent received a satisfactory or above- satisfactory rating on all of her teacher performance evaluation from the 1999/2000 school year through the 2006/2007 school year. However, Respondent admits that she has had consistent problems with time management and organization throughout her career. In October 2007, Respondent received a mini-grant from the Fernandina Beach High School Foundation. Respondent used the grant to provide her students with novels she used to teach literature. Additionally, in October 2007, Respondent earned continuing education credits toward recertification by attending a conference sponsored by the Florida Association for Theatre Arts. During the conference, Respondent participated in the "In Search of Shakespeare" workshop, which she hoped would prepare her to introduce Shakespeare as part of the British literature curriculum. Respondent's problem with providing focused instruction became critical during the 2007/2008 school year. Students in Respondent's classes were receiving failing grades and did not know why. Respondent made errors when reporting grades and had difficulty submitting them on time. Respondent was easily upset in the classroom. She would become emotional, lose her temper, and say things that were less than professional. Ms. Arnold heard disruptions in Respondent's classroom, which was behind a curtain, behind a stage, and behind double doors. Curtis Gaus was the assistant principal at Fernandina Beach High School from 2004 to 2008. Mr. Gaus also witnessed periods with the level of noise in Respondent's classroom was so loud that it could be heard in the cafeteria during lunchtime. Respondent was frequently tardy. As a result, Mr. Gaus would have to unlock Respondent's room and wait with her students until Respondent arrived. In October 2007, Respondent was required to complete progress monitoring plans and schedule parent conferences. The conferences were scheduled on October 14, 15, and 16, 2007. Petitioner did not turn in the progress monitoring plans until two months after holding the conferences. As observed by Ms. Arnold and Mr. Gaus, Respondent frequently failed to provide her students with any explanation of expectation as to a lesson or any modeling of what it was she expected the student to do. She provided no immediate feedback or clarification for the work they were attempting. In January 2008, Ms. Arnold observed Respondent using instructional time to read questions to students, expecting them to write the questions as she read them. Ms. Arnold advised Respondent that she should not use class time to dictate questions. On January 31, 2008, Ms. Arnold met with Respondent and gave her type-written comments, suggesting areas for Respondent to improve classroom instruction. Mr. Gaus observed teacher classroom at least once a month. Many times Respondent would be unaware that Mr. Gaus was in her classroom. For the majority of Mr. Gaus' visits, Respondent's students were off task. On one occasion, while Respondent was handing out notebooks, the students were playing video games and talking to each other. In February 2008, Respondent's English IV students presented a Renaissance Faire. The students researched and prepared exhibits, presented projects, and competed in a soliloquy contest sponsored by the National Endowment for the Arts to earn extra credit toward their semester grade. In support of the Renaissance Faire, Respondent wrote lesson plans, developed a project rubric, implemented classroom assignments and kept a record of student project grades. Respondent invited parents, current and former teachers, as well as community leaders to act as judges for an evening program presented by the students. Respondent took a six-week medical leave effective March 5, 2008. On March 8, 2008, Respondent attended a teacher's conference entitled Super Saturday. As a result of participation at the conference, Respondent earned the points she needed to renew her teaching certificate. Petitioner's Classroom Teacher Assessment Handbook for the 2007/2008 school year states that a continuing contract teacher must receive one formal observation, followed within 10 days by a post-observation conference. During the post- observation conference, a PDP must be developed for teachers receiving unsatisfactory performance appraisal reports. The formal observation must be completed by March 14. Performance appraisals are required to be completed and submitted to the Superintendent no later than April 7. However, Petitioner was on medical leave on these dates. In May 2008, Respondent provided Petitioner with a physician's written recommendation for extension of Respondent's medical leave. Petitioner approved extension of the leave through August 11, 2008. On May 29, 2008, Ms. Arnold wrote a letter to Respondent, who was still on medical leave. A Notification of Less Than Satisfactory Performance was included with the letter. The May 29, 2008, letter reminded Respondent that they needed to arrange a time in July to complete Respondent's 2007/2008 performance appraisal and to discuss the implementation of a PDP for the 2008/2009 school year. The letter refers to written comments that addressed Respondent's performance and that were provided to her earlier in the school year. In July 2008, Petitioner sponsored vertical and horizontal curriculum development workshops for English teachers of advanced placement and honors students. Some English teachers of regular/average students also attended the workshops. Respondent did not receive this training. On July 21, 2008, Ms. Arnold and Respondent met to discuss Respondent's 2007/2008 performance appraisal and PDP. The evaluation rated Respondent unsatisfactory with a total overall score of four out of a possible 100 points. Respondent's 2007/2008 performance appraisal contained Ms. Arnold's comments in each of the performance categories as follows: Planning/Preparation: Lack of long and short term planning[.] Detailed lesson plans must identify learning objective and the instructional strategies/activities/assessment planned to accomplish the objective. Work should be clear, compelling and engaging and include representative works and genres from the Anglo Saxon period through the present day. Feedback to students should be timely and specific. Documentation should be organized and accessible. Classroom Management: Classroom environment hostile, negative and chaotic. 3-step discipline procedure not documented. Records not accurate or timely. Classroom procedures lack organization. School & Board policies not consistently enforced. Room in disarray with papers, books, and materials in haphazard piles throughout the room. Assessment/Management: Interventions for academic, attendance and behavioral problems lacking. Parent contacts inconsistent and not documented. 3-step discipline procedure not implemented. Effective instructional strategies lacking. Work is frequently not meaningful or relevant to unit of study. Intervention/Direct Services: Teacher read test questions to students, refused to repeat questions, and subtracted points from students who requested additional clarification. Papers are frequently "lost," performance expectations for assignments not clearly defined, and grade information not easily available to students and parents. Technology: Teacher web site/Edline not utilized[.] Frequent errors in grade reporting[.] Difficulty meeting deadlines[.] Collaboration: Frequently alienates students and parents by failing to produce documentation for grades or clarification of assignments[.] Does not follow Board Policies for make-up work, and fails to communicate problems to parents to seek their assistance. Staff Development: While Ms. Autry has participated in numerous professional development activities for effective instruction, the strategies identified and recommended have not been implemented with any consistency in her classroom. Parental Input: Parents express frustration and impatience with the problems encountered by their students in Ms. Autry's class. Clear communication of academic and behavioral expectations needs to be provided to all stakeholders. Complaints about "disparaging comments" made by Ms. Autry about the students in her classes are frequent, both from students and teachers. Professional Responsibilities: Ms. Autry must learn to maintain a professional demeanor at all times in the classroom, and must avoid making negative comments about the students with whom she works. Improvement of instruction must become a priority. Extra-curricular involvement should be limited as it appears to interfere with time that should be devoted to her classes. Deadlines need to be met. Grading and attendance should be timely and accurate. Curriculum deficiencies must be addressed. Interim Student Growth: Academic interventions should be provided and documented for students experiencing difficulty in successfully completing the coursework[.] Parents must be notified and encouraged to participate in the intervention strategies. Grades should be fair, consistent, and easily available to students and parents. The greater weight of the evidence indicates that Ms. Arnold's comments on the 2007/2008 performance appraisal accurately summarized Respondent's professional deficiencies. Many of Ms. Arnold's comments show the same types of problems that Respondent has experienced for years. In 1984, Respondent used sarcasm towards students and failed to submit paperwork on time. In 1988, Respondent had problems with organization, submitting timely grades, and completing paperwork accurately and on time. In June 1998, Respondent was disorganized, late to work, and untimely in submitting paperwork. In August 1998, Respondent had trouble with accurate and punctual recordkeeping, using varied and appropriate educational strategies, and demonstrating effective classroom management. In the 2001/2002 school term, Respondent had trouble submitting grades on time. The final comment of Ms. Arnold on the last page of the 2007/2008 performance appraisal, states as follows: As a result of an unexpected medical leave, this evaluation and resulting professional development plan can not be completed until Ms. Autry's return to work. Ms. Arnold and Respondent signed the evaluation on July 21, 2008. Also on July 21, 2008, Ms. Arnold and Respondent reviewed a 32-page PDP plan. The PDP was designed to meet each area of deficiency on Respondent's 2007-2008 performance appraisal. Respondent did not take advantage of the opportunity to request any specific strategies or otherwise provide input regarding the PDP on July 21, 2008. However, the next day, Respondent sent Ms. Arnold an e-mail, requesting Ms. Arnold to review a folder of documentation to support Respondent's performance in certain areas. Ms. Arnold responded in an e-mail dated July 22, 2008. Ms. Arnold agreed to review the materials provided by Respondent. She also stated that "evaluation specific activities" might help them revise the PDP as needed. Ms. Arnold also invited Respondent to utilize the "Comments of Evaluatee" section of the performance appraisal. In subsequent e-mail, Respondent and Ms. Arnold agreed on a time to meet. Sometime after receiving the 2007/2008 performance appraisal, Respondent performed a self-assessment on all essential performance functions. She gave herself an overall rating of "needing improvement," with 30 of 100 points. For the 2008/2009 school year, Ms. Arnold assigned Respondent to teach four sections of English IV, first through fourth periods. Respondent had some regular education students and some ESE students in these classes. With only one preparation, Respondent did not have and should not have needed a co-teacher to assist her in teaching four classes of English IV. Respondent also was assigned as a co-teacher in two intensive language classes, fifth and sixth period. Anita Bass, a Reading Coach, was primarily responsible for planning and teaching the two intensive-language classes. Respondent, as a co-teacher, was supposed to provide assistance in general and to specifically provide help to ESE students. When Ms. Bass was absent, Respondent would teach the intensive-language class. On one occasion, Respondent taught a lesson on fables. On another occasion, Respondent taught a lesson on neurosurgeon, Dr. Ben Carson. In August 2008, Respondent was assigned a new classroom. She moved her materials from the room behind the cafeteria to a more traditional classroom. On September 12, 2008, Ms. Arnold visited Respondent's classroom for 15 minutes. During that time, Ms. Arnold observed Respondent reading from a text. Only three students had their books open and there was very little student participation. On September 15, 2008, Ms. Arnold sent Respondent an e-mail, advising that her lesson plans and weekly course outline were past due. On September 16, 2008, Ms. Arnold sent Respondent an e-mail regarding her classroom observation on September 12, 2008. The message also requested submission of Respondent's lesson plans and weekly course outline along with a written explanation as to Respondent's reason for not meeting the deadline. On October 13, 2008, Ms. Arnold visited Respondent's classroom. Ms. Arnold found the students talking, sleeping, and watching CNN because the movie described in Respondent's lesson plan was over. None of the students had books or papers on their desks. Respondent stayed behind her desk for approximately ten minutes then handed some graded brochures back to the students. Respondent spoke to her students for about five minutes during the 22 minutes of Ms. Arnold's visit. The students did nothing during that time. In an e-mail written later on October 13, 2008, Ms. Arnold noted that Respondent's weekly syllabus dated October 13, 2008, showed that the students were scheduled to watch a movie then complete a reading guide and a quiz. The e- mail discussed Ms. Arnold's observations earlier in the day and requested revised lesson plans for the week. Referring to the lesson observed that morning, Ms. Arnold also requested an explanation of the learning objectives and teaching strategies employed by Respondent. Ms. Arnold reminded Respondent that required tasks were to be completed in a timely and accurate fashion. A subsequent e-mail dated October 13, 2008, stated that Ms. Arnold had received Respondent's ESE Mainstream Report for four students. According to the message, the reports were given to Respondent on September 29, 2008, were due on October 3, 2008, and not given to the teacher of record until October 7, 2008. Because the Mainstream Reports were incomplete for several students, Mr. Arnold requested Respondent to review her Professional Growth Plan, requiring tasks to be completed in a timely and accurate fashion. Ms. Arnold also requested Respondent to provide the missing information. On October 21, 2008, Ms. Arnold sent Respondent an e- mail, requesting lesson plans that were due on October 17, 2008. Joyce Menz is Petitioner's Director of Staff and Program Development. In November 2008, Ms. Menz provided Respondent with an opportunity to attend a workshop related to classroom management. Petitioner did not attend the workshop. In the fall of 2008, Ms. Menz hired Jimi Buck, a retired language arts resource teacher and reading curriculum specialist, to sit and plan a lesson with Respondent. Ms. Buck then demonstrated instruction of the lesson plan in one of Respondent's classes. Ms. Menz arranged for Respondent to observe Ms. Drake, an English IV teacher at another school. Respondent and Ms. Drake spent some time going over Ms. Drake's yearlong plan of how and what she would be teaching. Ms. Menz hired a substitute for Respondent's classes so that she could consult with Ms. Drake. Ms. Menz hired Ms. Mealing, another consultant, to meet with Respondent and work on a week of lesson plans. During their time together, Respondent and Ms. Mealing viewed and discussed a DVD entitled "Strategies for Secondary English Teachers." Ms. Menz purchased the DVD specifically for the purpose of helping Respondent. Ms. Menz provided a substitute for Respondent's classes while she reviewed the materials with Ms. Mealing. Ms. Arnold made it possible for Respondent to observe Ms. Barlow's classes at Fernandina Beach High School, by hiring a substitute for one-half day. Ms. Barlow taught Advanced Placement and English IV Honors. Ms. Arnold also provided additional help to Respondent when school began in the fall of 2008. First, Ms. Arnold did not assign Respondent as a teacher of record for any ESE students. As a teacher of record, Respondent would have been required to keep track of what was happening with her ESE students. Ms. Arnold also excused Respondent from participating in any extracurricular activities. Ms. Arnold hoped that Respondent would devote all of her energy to improving her instruction. At times, Ms. Arnold would go into Respondent's class to get it under control in response to disruptive behaviors. Ms. Arnold then would make suggestions to Respondent about how to keep control, reminding her of the need to use the three-step discipline procedure. On November 6, 2008, Ms. Arnold and Respondent signed a performance appraisal. Respondent's overall rating on the evaluation was unsatisfactory. Respondent indicated that she thought her overall rating should have been "needs improvement," which would have still required a plan of assistance. Mr. Gaus observed Respondent during the PDP period and completed a performance evaluation. Mr. Gaus found that there was no improvement in keeping students on task. During the post-observation conference with Respondent, she continually acknowledged that she had problems with administrative tasks, lesson plans, submitting grades and managing the behavior of her students. On November 17, 2008, Ms. Menz observed Respondent's classroom. Ms. Menz found that Respondent's overall planning was not based on students' needs and was not clear and engaging. Ms. Menz observed two students who appeared to be sleeping and another texting. While Ms. Menz was in Respondent’s class, six students lost their early-lunch privilege. On the November 17, 2008, performance appraisal prepared by Ms. Menz, Respondent received an overall rating of unsatisfactory. Respondent made a comment on the evaluation form, indicating that she had learned a lot from the post- observation conference with Ms. Menz and looked forward to receiving further assistance. On November 21, 2008, Mr. Gaus, sent Respondent an e- mail. The message advised that Respondent had not posted her grades on Edline since October 21, 2008, and should do so as soon as possible. Edline is the computer program that Petitioner uses to record grades. Despite the PDP, Respondent's deficiencies did not improve. In her semester exam, she used materials that the students had not read. When the students questioned Respondent, she told them, "If you want to read it, look it up on the internet." In response to the PDP, Respondent developed a behavioral incentive plan to implement in the reading classes where she was the co-teacher. Respondent sent a letter to inform parents about the plan. The behavior incentive plan sought to reward positive student behavior with bathroom passes, snacks, and paper money. However, there were school rules against having food in the classroom and allowing bathroom passes except for emergencies. Moreover, the plan was not well received because the students thought Respondent was tallying their actions. As a co-teacher, Respondent was required to help implement a computer-directed reading program. Because Respondent was unable to provide assistance with the program, a third person had to be called in to perform the task for Respondent. An additional concern of Ms. Arnold's was that Respondent continued to ignore Petitioner’s policy regarding makeup work. Ms. Arnold was also concerned that Respondent was losing her temper and taking points from students who asked for clarification on assignments. In January 2008, Ms. Arnold observed Respondent's classroom again. Her comments on the performance appraisal were as follows: Planning/Preparation: Second 9-weeks spent on "Pygmalion" [.] Based on lesson plans, there were no novels, short stories, or poems by British writers included in the material taught (See eval. #1)[.] Classroom activities lack relevance and timeliness. (See eval. #2) Strategies and Objectives listed in lesson plans were not reflected in actual classroom activities. Classroom Management: Inappropriate student behavior during classroom observation was addressed and corrected by instructor. Developed behavioral incentive plan for students in Reading Classes with reward system for positive student behavior and achievement (bathroom passes, snacks, paper money)[.] Assessment/Management: Portions of the semester exam do not correlate to stated learning objectives, learning strategies, or class activities listed in the semester outline, lesson plans, or weekly syllabus. Students have not read "Julius Caesar" or "Heart of Darkness." Neither have they studied the three poems they are to compare. Students were told to "look up" the meaning of the literary terms that they were given to use in analyzing the poems on the exam. Many questions given to student in advance. Intervention/Direct Services: Ms. Autry does not demonstrate knowledge and understanding of the English IV curriculum. Significant works by British writers have not been taught. (See observation #1) Pacing is slow, with 9-weeks spent on "Pygmalion" to the exclusion of British novels, short stories and poems. Activities are not aligned with student needs. In- depth skills development is lacking. Technology: Ms. Autry utilizes technology for administrative and instructional tasks[.] However, on December 16th, Edline grades had not been updated since 10/23[.] Also on that date, the last weekly syllabus posted was for week 11. Collaboration: Ms. Autry's written complaints about ESE co-workers in which she stated the need for colleagues to provide accommodation for her [medical condition] resulted in strained working relationships. Ms. Autry attends department meeting and faculty meetings as outlined in the Plan of Assistance. Staff Development: Completed training in ESE/IEP, Tablet PC, Edline/Grade Quick and ELMO. Received direct training by Ms. Menz, Ms. Mealing & Ms. Buck to address instructional deficiencies. Declined suggested training opportunities in Discipline & Motivation Strategies, Behavior Management Strategies, Classroom Management, Lesson Planning, Parental Input, Classroom Assessment and Professional Responsibilities. (Based on identified needs in PDP and classroom observations.) Parental Input: Edline/Grade Quick posting irregular. Few documented parent contacts. Professional Responsibilities: Ms. Autry is teaching four sections of English IV and is the co-teacher in two sections of Reading taught by the Reading Coach. She in (sic) not the teacher of record for any ESE students. During the 90- day plan of assistance, lesson plans were submitted late 15 out of 18 weeks. Grades were not posted in a timely fashion on Edline. (Ms. Autry was excused from participating in extra curricular activities in order to focus on her plan of assistance. Interim Student Growth: Students who had not passed the FCAT were assigned to the Reading Coach who provided individual/group instruction during the first 9-weeks. 96% of Ms. Autry's students received semester grades of 70% or higher. No other assessments are available at this time. Ms. Autry and Ms. Arnold signed the performance appraisal dated January 7, 2009. Ms. Autry requested that Ms. Arnold attach information about a disability and its accommodations to the evaluation. Ms. Arnold complied with the request. Two weeks before the expiration of the PDP, Respondent requested a two-month extension because she could not comply with the plan. Respondent's request was denied. Petitioner's Superintendent, Dr. John Ruis, placed Respondent on paid suspension when she did not improve. Dr. Ruis then recommended that Respondent be suspended without pay pending termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment as a teacher. DONE AND ENTERED this 22nd day of April, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2010.
Findings Of Fact During the 1988/1989 school year, Shawanna Shaw was a student in the sixth grade at Madison Middle School. During the 1988/1989 school year Respondent was a student in the reading class of Ms. Willson. At the beginning of the school year Respondent's performance and conduct were acceptable. Shortly thereafter, however, Respondent began to demonstrate a severe disinterest in school. She would only complete about 10% of the homework assignments, would come to class without materials and otherwise unprepared, and refused to do work in class. Moreover, Respondent fell into a pattern of disruptive behavior which seriously interfered with the learning activities in the classroom. This behavior included yelling out in class, thereby breaking the silence required in a reading classroom, and showing open disrespect to her teacher by defying her authority and using abusive and foul language towards her. Respondent's behavior in Ms. Willson's class became so disruptive and unproductive that she was relegated to a separate table so as to separate her from other students. During these separations Respondent would sleep and did not benefit from any of the classroom activities. On other occasions, Respondent would defy her teacher's authority by simply leaving the room without permission. Ms. Willson attempted to improve Respondent's conduct in school by different methods, including a conference with the mother. Notwithstanding, there was no positive change in Respondent's behavior. As a result of Respondent's failure to make progress and depriving other students of making progress, she received a grade of "F3F," which constitutes a failing academic and conduct grade and the lowest rating for effort. Respondent was assigned to Ms. Ruddy, one of the school counselors, during the 1988/1989 school year. Because of the frequent conflicts that Respondent had with different teachers and the fact that she was not making progress Ms. Ruddy spent a disproportionate amount of time with her. Efforts by Ms. Ruddy to reactivate Respondent's interest in school were to no avail. Conferences with Respondent and her parents were ineffective. Respondent's skipping of classes became chronic; frequently Ms. Ruddy would find Respondent wandering the halls during normal class times. Further, Respondent frequently tried to engage other students in fighting both during classes and after school, and on one occasion Respondent pushed another student down the stairs. These latter acts can warrant expulsion. Like other schools within the Dade County School District, it is the practice at Madison Middle School for teachers and administrators to document troublesome student behavior. Written reports are made on Student Case Management Referral Forms, which are reserved to document serious behavior problems. Between September 8, 1988, and January 10, 1989, Respondent received eight Referral Forms from her teachers relating to disruptive and otherwise unacceptable conduct. Ms. Ruddy and the assistant principal, Barbara P. Bell, had numerous conferences with Respondent and her mother in an attempt to improve Respondent's behavior. Numerous techniques were considered, and in the process it was determined that the misbehavior of Respondent was not due to any learning disability, but was primarily the result of poor discipline. Madison Middle School is not geared to address the peculiar needs of students nor can it provide individual students with continuous special attention. For example, Ms. Ruddy, as a guidance counselor, has between 550 and 600 students assigned to her for counseling. The number of students assigned to her simply precludes any sort of in-depth, continuous, or special counseling for Respondent. By contrast, in an opportunity school there are far more counselors available to help develop students with individualized and continuous assistance. Moreover, at an opportunity school there is a full-time psychologist on staff, and the student to teacher ratio is less than half of what it is in a regular school program. As such, students can be provided with a much more structured and individualized program at an opportunity school. Both Ms. Ruddy and Ms. Bell are of the opinion that Respondent is simply not making any progress at Madison Middle School, and her disruptive behavior is preventing other students from benefiting from normal classroom activities. The more structured environment of an opportunity school could be of great benefit to Respondent and help her to resolve the discipline problems she is experiencing. Because of Respondent's poor grades, unacceptable conduct, and behavior which deprived other students of a learning experience, a child study team conference between teachers and an administrator was held at which the decision was reached to administratively assign Respondent to an opportunity school. At various times during the 1988/1989 school year Respondent's mother has requested that Respondent be tested for a learning disability and has refused consent for such testing. She has also requested that Respondent be transferred to the Opportunity School voluntarily and has refused to allow Respondent to be so transferred. During the course of the final hearing, Petitioner agreed that Respondent would be psychologically evaluated by Petitioner, resulting from the parent's request that such evaluation be performed. Although Respondent's Stanford Achievement Test scores are low to below average, it is the opinion of the school personnel having repeated contact with Respondent that her disruptive behavior and failure to do her work are not the result of a learning disability since she has been doing her work prior to October of 1988. They believe her conduct to be a result of lack of discipline. It is expected, however, that should the psychological evaluation indicate the possibility of a learning disability, the School Board of Dade County and Respondent's mother would permit and provide the appropriate testing to determine the presence of any learning disability in order to assist Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Shawanna Shaw to the Opportunity School Program at Jan Mann Opportunity School-North until such time as her performance reveals that she can be returned to the regular school program. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Frank A. Howard, Jr., Esquire Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, FL 33134 Mrs. Alberta Shaw 2360 N.W. 90th Street Miami, FL 33147
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent.
Findings Of Fact At all times material to this case, the Respondent was a certified teacher, employed by the Petitioner under a professional services contract and working at the Lehigh Acres Middle School. On or about February 6, 2002, the Respondent received two written reprimands from Gerald B. Demming, the school principal, related to the Respondent's behavior towards students. The first written reprimand related to incidents occurring on January 17 and 22, 2002, during which the Respondent verbally disparaged students, calling them "sorry" and "no good" and advising them that they would be unsuccessful "in life." The second written reprimand related to an incident on February 5, 2002, during which the Respondent apparently mocked a student in the classroom. In meeting with the Respondent, Principal Demming clearly expressed his concern regarding the Respondent's behavior towards students, and advised that such actions were unacceptable and were viewed as violations of the Principles of Professional Conduct. The Respondent signed and received copies of the written reprimands. The written reprimands were not the first time such concerns had been addressed with the Respondent. During the 2000-2001 school year, Mary Ann Moats, then employed as the Lehigh Acres Middle School principal, had verbally expressed concerns of a similar nature, specifically the use of derogatory language directed towards students (such as "stupid," "no good," and "ignorant"). Students became so unhappy with the Respondent's behavior that, on one day, an entire classroom of students walked out of the Respondent's class and walked to Principal Moats' office to express their dismay with his treatment of them. She attempted to resolve the dispute and urged the Respondent to modify his behavior. During Ms. Moats' employment as principal, the Respondent's behavior toward students continued to be of concern. Complaints were received from students, parents, and from other faculty members. She met more than once with the Respondent to discuss matters raised by the complaints. A written memo dated December 5, 2000, specifically related to allegations of verbal abuse directed towards students was provided to and signed by the Respondent. Further, such concerns were identified in paragraphs 5-7 of the Respondent's 2000-2001 performance evaluation dated April 9, 2001, where he received "Below Expectations/Unsatisfactory" marks in several areas including: Human Development and Learning: Uses an understanding of learning and human development to provide a positive learning environment which increases student achievement and supports the intellectual, personal and social development of all students. Learning Environment for Student Achievement: Creates and maintains a positive learning environment which fosters active engagement in learning, social interaction, cooperative learning and self motivation and manages student behavior; and Communication for Student Achievement and Parental Satisfaction: Uses effective communication techniques with students, parents (i.e., one-to-one telephone calls, conferences, newsletters, etc.), and all other stakeholders. Despite the clearly expressed concerns related to the Respondent's behavior towards students, the behaviors generally continued during the 2001-2002 school year, and culminated on February 13, 2002, in two specific events that resulted in the Petitioner's decision to terminate the Respondent's employment. During the 2001-2002 school year, the Respondent was assigned to teach a seventh grade class during the first period. K.R. was a student in the Respondent's first period class, and generally was an "A" or "B" student. On February 13, 2002, K.R. returned to the Respondent's first period class after more than a week of absence related to a family vacation. Prior to going on vacation, K.R. had obtained one week of advance class assignments in order to maintain her school work while on vacation, but the vacation apparently extended beyond what was originally planned. During the time for which K.R. had not obtained class assignments, the Respondent directed the students to prepare speeches related to Black History Month. The speech assignment was written on the chalkboard, as was the Respondent's usual practice, but had not been assigned at the time K.R. left for vacation. After class started, K.R. began to repeatedly question the Respondent about the assignment and went so far as to interrupt other students as they presented their speeches. The Respondent told K.R. to "shut up," called her "ignorant," and directed K.R. to go to a table at the rear of the classroom, remarking to the other students in the class that they did not want to be like K.R. Thereafter K.R. sat in the back of the classroom and cried. When class ended, the Respondent required K.R. to remain in his classroom while he called her mother and reported the behavior to her. K.R. spoke briefly to her mother during the call, but otherwise remained in the classroom, during which time other students began to enter for the second period class. When K.R. arrived at her second period class, she was still upset and her teacher sent her to the office to speak to a school official, at which time, concern related to the Respondent's behavior was apparently heightened. During the 2001-2002 school year, the Respondent also taught a seventh grade class during the sixth period. M.C. and J.A. were students in the Respondent's sixth period class. At the beginning of the period, M.C. was standing near the Respondent's computer located close to his desk. Attempting to quiet the class, he instructed the students to take their seats and settle. Standing behind M.C., he placed his hands on her shoulders and gently pushed her towards her chair, leaning down to tell her that when he told the class to sit down he intended for her to be seated as well. M.C. testified that when the Respondent told her to take her seat, the Respondent kissed the back of her neck. The Respondent denies kissing the student. The evidence related to the alleged kiss is not persuasive. The Respondent asserts that at the time of the alleged kiss, he was advising M.C. that she was part of the class and his instruction to the class to settle was applicable to her. M.C.'s testimony related to the Respondent's statement corroborates the Respondent's recollection and indicates that she understood that he was including her in his instruction to the class to settle. Of the students who were in the classroom at the time and who testified at the hearing, only one student testified that she saw the alleged kiss. Although she testified that she saw the kiss occur, her recollection of what the Respondent said to M.C. at the time of the alleged kiss is completely different from the statement claimed by the Respondent and corroborated by M.C.'s recollection. Other students in the classroom who testified did not recall seeing the Respondent kiss M.C. Although there is no evidence suggesting that such a kiss would have been typical of the Respondent's interaction with a student, no student recalled any type of noise or verbalization from the other students at the time of the alleged kiss. There was some evidence presented indicating that M.C.'s hairstyle on that day would have made it difficult to kiss her neck without having moved her hair, and suggesting that in leaning down to speak to M.C., the Respondent spoke closely enough to cause her hair to brush her neck. M.C.'s recollection of what hairstyle she wore on that day was uncertain. In any event, M.C. believed she was kissed and was unhappy about it. She eventually requested and received a bathroom pass from the Respondent, but after leaving the classroom, she went directly to the school administration office and reported the incident. After speaking to M.C., school personnel called the Respondent on the classroom telephone and asked him to send another student, J.A., to the office for early dismissal. After arriving at the office, J.A. was asked whether she had witnessed the incident. At that time, she was apparently advised not to discuss the matter with anyone else. While in the office, M.C. asked J.A. to return to the Respondent's classroom and to retrieve M.C.'s belongings. J.A. was permitted by assistant principal to return to the Respondent's classroom and to retrieve M.C.'s possessions. A teacher who had been in the office, Kevin Richter, escorted J.A. through the school on her way back to the Respondent's classroom. Mr. Richter then returned to his classroom. After arriving back at the Respondent's classroom, J.A. entered and began to collect M.C.'s belongings. The Respondent asked J.A. to tell him what she was doing. Believing she had been instructed not to discuss what she was doing, she did not respond to him, but finished collecting the items after which she walked out of the classroom and into the hallway. The Respondent followed J.A. into the hallway, and began yelling at her for being "disrespectful." J.A. began yelling back, telling the Respondent she was doing what she was asked to do. Apparently the confrontation between the Respondent and J.A. continued for a period of time and at sufficient volume as to attract the attention of a student affairs specialist in the office across the hallway as well as Mr. Richter, who by that time was two hallways removed from the scene. Mr. Richter, hearing the commotion and assuming that some students were preparing to fight, ran to the commotion and realized that the yelling was coming from the Respondent and a student. At that point, Mr. Richter went to the school office and summoned Principal Demming. After the yelling had subsided, the principal contacted the school district's personnel office and requested an investigation of the day's events. The investigation ensued and eventually resulted in the Petitioner's decision to terminate the Respondent's employment. The Respondent asserts that he was not sufficiently placed on notice of the behavioral issues to suggest that termination of employment is warranted. The evidence establishes that the Respondent received notice sufficient to comply with the School Board's NEAT process (Notice of deficiencies, Expectations, Assistance, and Time to improve). The Respondent asserts that the students were disrespectful and presented disciplinary problems. The Respondent had a classroom telephone and other means of communicating with school officials if a disciplinary situation became unmanageable. There is no credible evidence that any of the students addressed in this Recommended Order presented disciplinary problems that could not be managed through the normal policies and practices of the school, including referrals to school officials.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lee County enter a Final Order terminating the employment of Roger J. Phillips. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. _____ WILLIAM F. QUATTLEBAUM 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 2nd day of August, 2002. COPIES FURNISHED: J. Paul Carland, II Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Robert J. Coleman, Esquire Coleman & Coleman, P.A. 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Dr. John W. Sanders, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Honorable Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether the District has proven, by a preponderance of the evidence, that there was just cause to dismiss Thomas Brown, consistent with the provisions of the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941), as amended, and Chapter 120, Florida Statutes.
Findings Of Fact The Respondent, Thomas Brown, was a teacher of instructional music in the Duval County School District (District). As part of the instructional personnel with the District, Brown was subject to be evaluated on an annual basis pursuant to the teacher assessment system. The purpose for evaluating teachers is to make certain that instruction is occurring in the classroom and that students are learning the required subject matter. The evaluation process also makes certain that student safety in the classroom is taken into consideration by the instructional personnel (teachers). The District uses the teacher assessment system to evaluate all of its teachers regardless of the subject matter they instruct. From the 1999-2000 and the 2000-2001 academic school years, Brown was a teacher at Andrew Jackson High School where Jack Shanklin (Shanklin) is principal. Shanklin has evaluated teachers annually since he became a principal 22 years ago. He uses the classroom observation instrument within the teacher assessment system to evaluate all of his teachers. At the beginning of the 2000-2001 academic year, Shanklin; Ms. Pierce, assistant principal; Dennis Hester, professional development cadre member; and Mr. Dudley took part in creating a success plan for Brown. A success plan is a course of action designed to prevent an at-risk teacher from getting an unsatisfactory annual evaluation by engendering professional improvement. Shanklin discussed the success plan with Brown before it was implemented. Brown did not have any objections to the plan. Shanklin evaluated Brown for the 2000-2001 academic school year during March of 2001. He based his evaluation results on the observations and written reprimands that he had issued to Brown throughout the 2000-2001 year. During the year, Shanklin observed Brown's classes. In preparation for a classroom visit, he reviewed Brown's lesson plans for October 18, 2000. Lesson plans describe the daily plan for instruction of the students on a particular day. Shanklin had previously directed Brown to turn in his lesson plans on a weekly basis in order to monitor Brown's progress because of his departure from planned lessons. Shanklin attempted to observe Brown in his classroom on October 18, 2000; however, neither the class nor the teacher was present in Brown's classroom. Shanklin later found Brown and the class with the choral class in the auditorium; but Brown had failed to amend his lesson plans to include the choral visit, although he had adequate time to do. He had presented none of the lesson plan that had he filed. Shanklin returned on October 19, 2000, to observe Brown's classroom ten minutes after class has begun. As he entered the classroom, two students ran out the back door. When questioned, Brown had no knowledge of their identity. Shanklin witnessed students harassing other students without correction from Brown while he was addressing the needs of only five of his 35 students. While Brown spoke with the small group, the other students were doing whatever they wanted. There were no class assignments being conducted by the other students. Shanklin later identified one of the students who had been harassing other students as John Fields. Shanklin removed Fields from class because his behavior was so menacing. Brown should have prohibited and corrected the student misconduct, which he failed to do. Shanklin gave Brown a written reprimand by letter dated October 30, 2000. Shanklin also observed Brown on December 4, 2000, during a previously announced observation. Brown did not begin class with an appropriate review of recent material or outline of the day's lesson. Student misconduct again was uncorrected by Brown. Students were moving around and talking during instruction by Brown without correction. This class was not a band class, but a music appreciation class, and there was no need for student movement during instruction. After this observation, Shanklin reviewed his observations with Brown in January of 2001. Following the January discussion, Shanklin observed Brown again later that month, at a previously announced observation. He also discussed that visit with Brown. Shanklin also had Dennis Hester, a professional cadre member, observe Brown's classroom instruction. As part of Hester's responsibilities to improve "less than satisfactory" teachers, Hester reviewed and approved the success plan developed for Brown. Pursuant to that plan, Hester assisted Brown with both formal and informal observations and conferences through 2000 and 2001. After multiple informal conferences in January, Hester began formal observations in February. Hester utilized a number of tools to accurately document the classroom instruction by Brown. Domain One Instrument is a tool in the Florida Performance Measurement System which identifies a teacher's ability to plan lessons. The Domain Two Instrument is a classroom management tool used in the Florida Performance Measurement System (FPMS) to assess how a classroom is run. Hester was trained to evaluate teachers by using both tools and has done so with over 30 teachers in Duval County. Hester also used a conference planning guide which is a list of behaviors observed indicating areas to be worked on, and the Clinical Educator Training (CET) anecdotal instrument to clarify the events of a classroom observation in detail. Hester observed Brown's class on February 1, 2001, and saw a number of students off-tasks, and one child sleeping. Hester observed Brown tell the sleeping child to "wake up, no slobbering on the desk . . ." Brown should have taken positive steps to keep the student awake, and should not have accused him of "slobbering on the desk." Hester discussed these deficiencies with Brown towards the end of February. Hester was due to have all of his evaluations completed on March 15, 2001. Although the Domain One, on planning lessons, was due from Brown to Hester on January 18, 2001 for a February 27, 2001, class observation, Hester did not receive it until March 7, 2001. Thereafter, Hester faxed his commentary of the Domain One to the school for Brown to review as the remaining time permitted. Although Hester did not specifically provide Shanklin with his observation notes for review, the principal reviewed the cadre's notes which outlined the similar misconduct and classroom mismanagement Shanklin witnessed himself. Shanklin's evaluation was also made with the consideration of an incident at the May graduation of 1999/2000 academic school year. Brown's band refused to perform after Brown instructed them to do so. It was later discovered that those students who refused to perform were academically ineligible to be in the class. In prior years, Brown had allowed ineligible students to perform in the school band against the school's rules and regulations, and had been told to stop permitting this. On March 15, 2001, Shanklin gave Brown an unsatisfactory annual evaluation. In evaluating Brown as unsatisfactory for Competency No. 1, Shanklin considered his own observations of Brown's failing to follow his established lesson plans. Brown's failure to manage his classroom and correct student misbehavior supports Shanklin' unsatisfactory evaluation under Competency No. 3. Because of a lack of academic climate due to classroom mismanagement and unorganized instruction, Shanklin deemed Brown to have been unsatisfactory in Competency No. 4. In addition, regarding Competency No. 4, Brown allowed students to eat in his classroom which was critiqued by Shanklin in a letter to Brown dated December 6, 2000. In evaluating Brown unsatisfactory under Competency No. 5, Shanklin considered Brown's failure to provide sufficient evidence that any real grades could be disseminated to Brown's students as there were no rubrics or student work visible for assessments. Finally, Shanklin gave Brown an unsatisfactory evaluation on Competency No. 9 because Brown never demonstrated any type of diversified lesson designed to maintain the attention of the students; which was needed as evidenced by the repeated observation of students sleeping in his class. Following the 1999/2001 academic school year, Brown was transferred to Jefferson Davis Middle School where Bob Powell was principal. Powell created an initial success plan for Brown when he first arrived in the beginning of the year. After formally observing Brown, Powell created a second success plan dated October 29, 2001, which was discussed and agreed to by Brown. The plan was designed for Brown to implement the components for his own benefit. Throughout the year, Powell observed Brown's classroom instruction. On November 20, 2001, Powell formally observed Brown's instruction. Thereafter, Powell also observed Brown on two more occasions on January 10 and 18 of 2002. During his observations, Powell witnessed students talking during "warm-ups," whose attention Brown failed to get. Powell observed that Brown failed to provide praise to his successful students which is needed at the middle school age. Powell noted problems Brown had with communicating with band parents. Powell was concerned that a band parent reported that Brown had threatened to fail and throw her child out of band practice which Brown had no authority to do. In addition, band parents also complained that Brown placed their names as chaperones on a field trip, without their permission. When this was revealed, the trip had to be cancelled. Following the formal conferences with Brown, Powell discussed his observations with Brown. Brown admitted to Powell that other District personnel were telling him the same things Powell was mentioning. Notwithstanding the counseling, Brown was unable to constructively adapt. Powell also requested Patricia Ann Butterboldt to observe Brown during his instruction at Jefferson Davis Middle School. Butterboldt is responsible for supervising and overseeing the curriculum of music teachers throughout the District. During the 2001/2002 academic school year, Butterboldt observed Brown with an intermediate class on two occasions. On November 1, 2001, Butterboldt observed that Brown failed to follow his own instructional classroom schedule. In addition, Brown utilized students to instruct other students in complex musical exercises for which students had no ability to adequately conduct the drill. Butterboldt also witnessed Brown's students consistently off task. On January 23, 2002, observation, Butterboldt again observed inappropriate classroom instruction and management, to include Brown's failure to correct the class for ridiculing a student. Butterboldt noted that even if students forget their instruments, the teacher is responsible to provide instruction to that student. Following both Butterboldt's observations, Powell was provided copies of her observation's reports. Sue Martin, professional cadre member, was requested by Powell to provide feedback on Brown's instruction. Her report was introduced as Exhibit 29. During the same academic school year, Mrs. Saffer, vice-principal observed Brown pursuant to Powell's request. Saffer also utilized the classroom observation instrument during her observation of Brown. Saffer observed that Brown failed to properly correct the behavior of non-responsive students. Although critical, Saffer also complemented Brown on his positive action; however, after reviewing Brown's grade book for the day of her observation, Saffer was surprised that the students were awarded grades without any means of evaluation Saffer could decipher. Afterwards, Saffer met with Brown weekly regarding his grade book. In addition to the grade book, Saffer also discussed with Brown her observations (formal and informal) of his instructional conduct throughout the school year. Although Saffer did not evaluate Brown, she did provide her observations to Powell for his evaluation. In addition to school assistance and counsel, Powell provided Brown with many opportunities for professional training. Brown attended at least two training sessions to Powell's knowledge. However, Powell learned that Brown rejected a training conference in Jacksonville offered to him by Butterboldt because he said the presenters of the conference were "racists." On January 30, 2002, Powell provided Brown with a notice warning him of an unsatisfactory annual evaluation. Powell based his notice of a possible unsatisfactory evaluation on all of the observations and notations he made and had been provided to him. Thereafter, Powell observed another instruction by Brown in February of 2002. However, Powell never witnessed Brown perform pursuant to the schedule attached to a letter drafted by Brown which allegedly addressed Powell's concerns. Powell eventually prepared Brown's annual evaluation for the year which reflected Powell's assessment of Brown's unsatisfactory performance demonstrated throughout the academic year. John Williams is the director of professional standards for the District who was responsible for generating the termination letter once he received the second unsatisfactory evaluation. After reviewing all of the notices and evaluations, Williams not only determined that the manner in which both principals utilized the teacher assessment system was appropriate, but that Brown's performance required that the District initiate Brown's termination from employment.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Respondent, Thomas Brown, be dismissed from employment. DONE AND ENTERED this 11th day of March, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2003. COPIES FURNISHED: Derrel Q. Chatmon, Esquire Duval County School Board 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 John C. Fryer, Jr., Superintendent Duval County Schools 1701 Prudential Drive Jacksonville, Florida 32207-8182
