The Issue Whether respondent's teaching contract should be renewed for school year 1995-96.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: Background In this proceeding, petitioner, Suwannee County School Board (Board), seeks to terminate respondent, Lallah P. Singh, a teacher, on the ground his classroom performance in school years 1993-94 and 1994-95 was unsatisfactory. In doing so, petitioner relies upon Section 231.36(3)(e), Florida Statutes, which authorizes a school board to terminate an employee with a professional services contract (PSC) when that employee has an unsatisfactory performance rating for two consecutive years. This proceeding represents the first occasion on which the Board has utilized the statute for a PSC teacher. Respondent, who has been employed in the Suwannee County school system since December 1977, is certified as a teacher in the areas of biology and mathematics for grades 6-12. A native of India, he holds the equivalent degree of a doctor in veterinary medicine from a university in that country. He has also obtained a master's degree in veterinary science in this country and is certified as an education specialist in mathematics. Until school year 1993-94, respondent was employed in a variety of positions, including a regular classroom teacher (1977-86), a home study teacher (1987-89), and an alternate education teacher (1990-92). During school year 1993-94, respondent was assigned to the Branford Pre K-12 School in Branford, Florida where he taught the in-school suspension (ISS) class. That class is made up of high school level students suspended from their regular classes for disciplinary reasons. The assignment required that respondent maintain discipline and assist students with work assigned by their regular teachers. Based on observations conducted by his principal during the school year, respondent received an unsatisfactory evaluation for his classroom performance. He was notified of these deficiencies in writing and was told that such deficiencies must be corrected by the end of the following school year, or else he would face possible non-renewal of his contract. For school year 1994-95, respondent was reassigned to an ISS classroom four periods per day but was also required to teach a general science class one period per day. During that year, respondent was observed by his principal in the general science class on four occasions to determine if the deficiencies noted in the prior year had been remediated. While most of the earlier deficiencies were eventually corrected, respondent was still unsatisfactory in one performance area noted in the prior year, as well as two other areas, and his performance was accordingly deemed to be unsatisfactory. On May 15, 1995, he was notified that his contract would not be renewed. By letter dated May 19, 1995, respondent requested a hearing to contest the Board's action. Although Section 231.36(3)(e)4.b., Florida Statutes, requires that the hearing be scheduled within 45 days of receipt of the written appeal, the parties have waived this requirement by requesting hearing dates beyond that timeframe. As clarified by his counsel, respondent generally contends the Board erred in the termination process by (a) providing him untimely and insufficient notice, (b) performing an inadequate evaluation, and (c) offering him inadequate assistance to correct his deficiencies. He asks for reinstatement of his professional services contract, as well as back pay. Events Leading up to School Year 1993-94 Around 1982, the legislature amended Section 231.36(3), Florida Statutes, to create a professional services contract under which teachers could be employed. Prior to that time, teachers not on annual contract status were employed under what was known as a continuing contract. Both a PSC and a continuing contract are considered a form of tenure for public school employees. After the new law became effective, teachers employed under a continuing contract were given the option to convert to a PSC. The advantage to a PSC is that if a teacher is cited for unsatisfactory performance in a given year, he or she has the following year in which to remediate those deficiencies. If the deficiencies are not remediated in the second year, a school board can change the teacher to annual contract status and decline to renew the teacher's contract. This procedure contrasts with the continuing contract process which, after an unsatisfactory rating is given but is not remediated by the teacher, allows a school board to change the teacher to annual contract status and not renew the contract at the end of any given year. In school year 1991-92, respondent was still employed under a continuing contract. When he received an unsatisfactory evaluation, and was threatened with the possibility of being changed to an annual contract and not renewed, he consulted with a teacher's union field representative, Richard E. Layer, on his procedural and substantive rights. During their discussions, the two talked about whether respondent should remain on a continuing contract or switch to a PSC. According to Layer, he explained to respondent "how the statute (governing a PSC) worked," advised him that a PSC offered more job security than a continuing contract, and recommended respondent switch to a PSC since this would give him two years in which to correct any deficiencies that might occur in the future. Layer added that after their conversation, respondent "knew exactly what the (PSC) provided." Based on Layer's advice, in April 1992 respondent requested that he be converted to a PSC. This was done for school year 1992-93, and he remained in that status until his contract was terminated in May 1995. The Evaluation Process Generally When evaluating classroom performance in both school years 1993-94 and 1994-95, the Board used standard evaluation forms developed by representatives of the Board and teacher's union. The evaluation, which must be performed at least once a year for teachers having a PSC, is conducted by the teacher's immediate supervisor, who in this case was the school principal, Melvin McMullen. McMullen had assumed that position during the latter part of school year 1992-93, had received special training for conducting evaluations, and was required to perform evaluations for over fifty teachers in both school years 1993-94 and 1994-95. The evaluation process for a teacher on a PSC consists of at least one classroom evaluation during a given school year. The results of the first evaluation are recorded by the evaluator on an assessment form. Within five days after the observation, a principal-teacher conference must be held for the purpose of reviewing the outcome of the observation. At that meeting, the teacher must sign the form, which includes a written admonition that "(f)ailure to correct the area(s) marked unacceptable may lead to your dismissal or non- renewal." Subsequent evaluations during the year, if any, are also recorded by the evaluator on an assessment form. For all evaluations, the teacher is given an acceptable ("A") or unacceptable ("U") rating for each evaluated area. Although the assessment forms used herein changed in some minor respects from school year 1993-94 to school year 1994-95, their substance was essentially the same. Each assessment form for a classroom teacher contains six overall performance standards, including planning, teaching procedures, classroom managment, presentation and knowledge of subject matter, assessment techniques and personal characteristics and professional responsibilities. Under the performance standards are found a total of twelve "indicators." Finally, within the indicators are found a "checklist of observable teaching behaviors," consisting of twenty-seven behaviors, each requiring a rating of "U" or "A." If any teaching behavior is given a "U," the indicator likewise requires a rating of "U." If an indicator is marked "U," the performance standard is also scored unacceptable. A total score is then assigned to the teacher, with one point given for each indicator with an "A," and the highest score being twelve. Anything less than a twelve is considered unsatisfactory and, if not corrected, may result in the teacher's dismissal. If the first observation of a PSC teacher results in an unsuccessful rating in any area, a "level-one" assistance plan is instituted by the principal, which consists of a principal-teacher conference to discuss the deficient areas, suggestions on how to correct the deficiencies, and a timeframe to correct the substandard performance. If insufficient progress has been made by the end of the timeframe, at the option of the assessor, the level-one assistance process can be repeated or a "level-two" assistance plan can begin. The latter level of assistance generally mirrors the assistance given during level-one but the assessor must also notify the superintendent that level-two has been initiated. If the deficiencies are still not corrected by the end of the school year, the superintendent is notified, and the teacher is again placed on notice that he must correct those deficiencies during the following school year or suffer the risk of being reverted to an annual contract status and not being renewed. Finally, during the subsequent school year, the same observations are conducted, and level-one and two assistance plans are implemented if deficiencies are observed. If remediation does not occur by the end of the second school year, the superintendent has the authority to recommend that the school board decline to renew the teacher's contract. School year 1993-94 Respondent was first evaluated by principal McMullen on February 23, 1994. He received a total credit of 10 out of 12 possible points. For the indicators "Recognizes and provides for individual differences" and "Demonstrates effective classroom facilitation and control," respondent received a "U." A conference was held by McMullen and respondent the same day, at which time respondent was given a form entitled "Related Work Performance Form (Appraisal III)." It contained not only an explanation of unacceptable areas and recommended procedure for correction, but also a notation that respondent had "2 weeks from today to demonstrate acceptable teacher corrective action." On March 14, 1994, respondent was again evaluated by principal McMullen. Although McMullen noted that "improvement" had occurred since the earlier evaluation, respondent received a credit of 11 out of 12 points. Indeed, he was still deficient in the area of "Demonstrates effective classroom facilitation and control." At a conference held the same day, respondent was given an explanation of his unacceptable area, a recommended procedure for correction, and the following timeframe for improvement: "2 weeks approximately from 3/14/94.". On March 15, 1994, respondent was given a lengthy list of resource materials available for use in correcting his deficiencies, including videos, journals and publications. In addition, he was given written instructions for use of the materials. Based on the unsatisfactory performance rating, principal McMullen sent the following letter to respondent on March 25, 1994: This letter is to notify you that you have demonstrated unsatisfactory performance on the Final Observation/Assessment Form (Appraisal I), with deficiencies noted in the folowing areas: Classroom Management Number 2: Maintains rules of conduct Number 3: Maintains instructional momentum These deficiencies must be corrected by April 1, 1995. I am requesting that your employ-ment be continued an additional year in order to provide you assistance. If you wish to discuss this matter with me further, please schedule an appointment through Mrs. Cannon. I look forward in continuing to work with you on classroom management issues. Respondent acknowledged receiving a copy of the letter the same day. On March 31, 1994, principal McMullen wrote the following letter to superintendent Blaylock: Dr. Lallah Singh has been notified of unsatis- factory performance on the Final Assessment Form with deficiencies noted in the following areas: Classroom Management Number 2: Maintains rules of conduct Number 3: Maintains instructional momentum I request that his employment be followed for an additional year to allow the opportunity to correct these deficiencies by April 1, 1995. Whether respondent received a copy of this letter is not of record. Although the March 14, 1994 evaluation was ostensibly used for personnel decisions that year, on May 6, 1994, a third formal assessment of respondent's classroom performance was conducted by principal McMullen. On that date, he received a credit of 11 out of 12 points. Even so, respondent was still deficient in "Classroom Management" and the related indicator based on unacceptable ratings given for the following observable teaching behaviors: "Maintains rules of conduct" and "Maintains instructional momentum." Thus, no matter whether the March or May evaluation was used, at the end of the first school year in question, respondent's only noted deficiency continued to be for classroom management and the related indicator, "Demonstrates effective classroom facilitation and control." On May 10, 1994, respondent and principal McMullen met to discuss respondent's latest assessment. Although McMullen noted that respondent had made "progress in meeting recommended procedures to help correct areas of concern," he noted that his level of improvement was "still not acceptable" and that respondent must continue the earlier suggestions for improving his performance. The two agreed to meet during the next school year's pre-planning period to discuss a plan of improvement for that year. This was embodied in a letter sent by McMullen to respondent on May 11, 1994. Sometime after receiving this notification, respondent contacted his local teacher's union representative, Willie Veal, Jr., for advice and assistance. On April 21, 1994, acting on the superintendent's recommendation, the Board reemployed respondent for the following year and placed him in a status known as "Professional Services Contract continuation (2nd year)," which is the Board's terminology for the "subsequent year" described in section 231.36(3)(e). Respondent did not receive a copy of this action. On June 7, 1994, however, respondent received a letter from the superintendent advising that the Board had approved him for a PSC for school year 1994-95. School year 1994-95 On August 19, 1994, respondent, union representative Veal, and principal McMullen met to discuss respondent's teaching status for the 1994-95 school year. At that meeting, respondent learned he would be reassigned to ISS but would also be required to teach general science one period per day. Although respondent says general science was not his strongest suit, which was mathematics, it was a subject within his certified area of biology. He also understood that his contract was subject to being non-renewed if he did not correct his deficiencies during the school year. This was confirmed by witness Veal. The following letter was given to respondent on August 29, 1994, to memorialize the substance of the meeting: Thank you for meeting with me while Mr. Veal had a moment last Friday (August 19th., 1994) to generally discuss plans for teaching improvement for the 1994-95 school year. As we discussed, I believe the opportunity to teach a General Science class and Mr. Brown spending two periods a days (sic) with I.S.S. students (doing Drop-Out Prevention counseling) will be two positive techniques to aid improvement as noted on the Appraisal II Form from last year. You and I will meet again soon, to review matters particular to unacceptable areas noted on the May 6th., 1994 Observation/ Assessment. We will then outline other suggestions, techniques and/or personnel that might assist this teacher improve- ment process. On November 15, 1994, respondent was sent the following letter by principal McMullen: As we discussed at our 8/25/94 (sic) meeting, and briefly the other day, we need to meet this coming week to discuss items noted on the Appraisal II Form. We will review the items which were unacceptable on the 5/6/94 Observation/Assessment Form. Can a meeting between you and I be set up for Tuesday afternoon, about 2:30 in your room? Please let me know. Pursuant to this letter, a meeting was held on November 20, 1994. During the meeting, principal McMullen further discussed respondent's deficient areas in the prior year and suggested ways to improve them. He also recommended that informal observations be made in an effort to prepare respondent for his formal observations during the following months. While respondent contends this assistance was begun too late in the school year to be of any meaningful value, it was rendered more than four months before the final evaluation on March 29, 1995. Then, too, respondent's most persistent problem continued to be in the area of classroom management, for which assistance to remedy that problem had been offered throughout the previous year. On December 12, 1994, principal McMullen conducted the first of four observations of respondent's performance in his general science classroom. That classroom, rather than the ISS class, was chosen out of fairness to respondent in order to assess him in a controlled classroom environment. On that day, respondent received a score of 7 out of 12 possible points. More specifically, he received an unacceptable rating for the following indicators: "Uses instructional materials effectively," "Displays skills in making assignments," "Recognizes and provides for individual differences," "Demonstrates effective classroom facilitation and control," and "Presents subject matter effectively." The following day, or December 13, 1994, petitioner was placed in the level-two assistance process. He was given a detailed explanation of unacceptable areas of performance observed at the December 12 evaluation and a lengthy list of suggestions on how to correct each of those deficiencies. Late on the morning of the same day, or December 13, 1994, principal McMullen walked by the building in which respondent taught and "noticed (him) sleeping at (his) desk" with his shoes off and leaning back in his chair. There were four students in his classroom at the time. Respondent was given a letter confirming this incident and told that if he had a medical reason which caused him to sleep to provide the principal with a doctor's note by December 16, 1994. Respondent provided a letter from his doctor the following day in which the physician listed four medications being taken by respondent, none of which would cause him to sleep. However, the physician noted that respondent "occasionally" took an over the counter cough syrup "that may cause drowsiness." Whether respondent was taking a cough syrup that day is not of record. This incident is relevant to the charge that respondent did not properly manage his classroom. On January 24, 1995, principal McMullen again performed an assessment of respondent's classroom performance. On this occasion, respondent received a score of 10 out of a possible 12 points. He received unacceptable ratings for the following indicators: "Demonstrates effective classroom facilitation and control" and "Presents subject matter effectively." On January 27, 1995, and pursuant to the level-two assistance program, respondent was again given a written, detailed explanation of his unacceptable areas and a list of recommended procedures for correction. He was told that he would be reevaluated on or about February 17, 1995. Finally, respondent was given the following written notice: Failure to satisfactorily correct all area(s) of unacceptable performance within the expected timeframe may result in returning the teacher holding a CC/PSC contract to annual contract status. If area(s) of unacc- eptable performance are not satisfactorily corrected during the second year, the teacher may be recommended for non-renewal. On February 21, 1995, another classroom observation was conducted by principal McMullen. That day, respondent received a score of 10 out of 12 possible points. Respondent again received unacceptable ratings for the following indicators: "Demonstrates effective classroom facilitation and control" and "Presents subject matter effectively." At a conference the same date, respondent was advised in writing that the following administrative assistance would be rendered: "Arrange conference time with fellow teachers/administrators, help secure resource materials and arrange for time to visit (illegible), etc." Respondent was also told that "(b)y April 5th (approximately six weeks), 1995 all observed/assessed areas should be scored acceptable." In addition, respondent was given a more detailed explanation of his unacceptable areas and recommended procedures for correction of those areas. On March 13, 1995, principal McMullen acknowledged receipt of certain corrective measures which respondent proposed to use at his next observation. These corrective measures were considered by principal McMullen at the next observation. A final observation of respondent occurred on March 29, 1995. Respondent received three unacceptable ratings which resulted in a score of 9 out of 12 points. On that occasion, he received unacceptable ratings for the following indicators: "Uses appropriate motivating techniques," "Demonstrates effective classroom facilitation and control," and "Presents subject matter effectively." The second noted indicator, "Demonstrates effective classroom facilitiation and control," was the same indicator for which respondent had received an unacceptable rating the prior year. On March 30, 1995, principal McMullen sent the following letter to respondent: This letter refers to our meeting today on your 3/29/95 Observation/Evaluation. Having gone over that with you, I wanted to highlight the fact that you still have three areas deficient in evaluation of your classroom teaching. These areas are noted on your evaluation form. Instructional recommendations are due to the Superintendent April 1, 1995. Due to this being the second year in the process to correct noted deficiencies and those continue, I have no choice but to recommend non-renewal at that time. Respondent acknowledged receiving a copy of the letter the same date. On March 31, 1995, principal McMullen notified the superintendent by letter that he could not recommend respondent for the 1995-96 school year term given his failure to correct the deficiencies. The superintendent accordingly recommended to the school board on April 21, 1995, that respondent not be rehired for the following school year. The recommendation was accepted by the school board at its April 25, 1995 meeting. On May 15, 1995, the superintendent advised respondent by letter that his contract was not being renewed for the following school year. This notice prompted respondent to request a formal hearing to contest the school board's proposed action. Was There Adequate Notice, Evaluation and Assistance? Notice Respondent contends that the school board erred by giving him inadequate and untimely notice of its actions. At the same time, respondent asserts that he was unaware of the consequences of the unsatisfactory performance ratings in school year 1993-94. He claims that, before the middle of school year 1994-95, no one ever specifically told him that his employment status was in jeopardy if his deficiences were not corrected by the following school year. Respondent's contention that he was unaware of the consequences of the 1993-94 unsatisfactory rating is not deemed to be credible. As early as 1992, respondent was given an explanation on how section 231.36(3)(e) "worked" by a field representative of the teacher's union, and according to the representative, "knew exactly what the law provided." Based on that advice, he switched from a continuing contract to a PSC since he had been told that this would give him two years to correct deficiencies before his employment could be terminated. Beginning in the summer of 1994, he was also represented by the president of the Suwannee County teacher's union, Willie Veal, Jr. At a meeting with Veal and principal McMullen in August 1994, respondent was told that he must correct his deficiencies before the end of the school year or face non- renewal. In addition, respondent had been through a similar evaluation process several years earlier. In 1992, he received an unsatisfactory performance rating and was told that unless the deficiencies were corrected, his contract might be terminated. In that case, however, the deficiencies were corrected, and he retained his tenure under a PSC. Finally, each of the many assessment forms that respondent signed during this process specifically noted that his "(f)ailure to correct the area(s) marked unacceptable may lead to (his) dismissal or non-renewal." Therefore, the totality of the evidence belies respondent's contention that he did not understand that this could happen. Statutory requirements The school board did not strictly follow all requirements of the law in terminating respondent. For example, the law requires that the superintendent provide the teacher in writing "no later than 6 weeks prior to the end of the postschool conference school period, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment." In this case, respondent received this notice from his principal, rather than the superintendent. However, such notice was sufficient to inform respondent of the gravity of the situation. In the subsequent year, or school year 1994-95, the same notice must again be provided to the employee "no later than 6 weeks prior to the close of the postschool conference period." In this case, the notice was given by the superintendent, but this occurred less than "6 weeks prior to the postschool conference period." Although several errors in procedure occurred during the termination process, they were not so serious as to impair the fairness of this proceeding, or to cause prejudice to respondent in the defense of this case. Therefore, the errors in procedure are deemed to be harmless. Evaluation and Assistance The statute also calls for the employee to be "provided assistance and inservice training opportunities to help correct the noted performance deficiencies." However, the specific type of assistance and opportunties to be afforded a teacher is not statutorily defined. Respondent contends that such assistance and opportunities were never provided. Beginning with his first evaluation in February 1994, respondent was given assistance in the form of specific suggestions on how to correct the deficiencies. Also, numerous principal-teacher conferences were held to discuss the observation findings. After the March 14, 1994 evaluation, respondent was given a lengthy list of videos, journals and publications to use in an effort to correct his deficiencies. He was also given written instructions for the use of the materials. At the beginning of school year 1994-95, respondent had a pre-school meeting with both his principal and union representative concerning this matter. He also met with the principal on November 20, 1994, and the two discussed "other suggestions, techniques and/or personnel that might assist (his) teacher improvement process." Following an evaluation on December 12, 1994, respondent was given a detailed explanation of unacceptable areas of performance and a lengthy list of suggestions on how to correct those deficiencies. After another evaluation on February 21, 1995, respondent was again given advice on how to correct his deficiencies before the next evaluation. Although respondent says he took this advice to heart, and did all of the things suggested by his principal, he was still unable to obtain an acceptable rating. The Board, however, cannot be faulted for respondent's continued inability to correct the cited deficiencies. Through his expert, respondent contended that the evaluation and assistance process was not adequate. In reaching this conclusion, the expert relied upon her experience in the States of Georgia and Texas, as well as Dade and Seminole Counties, Florida. She did not, however, have any teacher remediation experience in small, rural counties such as Suwannee. The expert pointed out that a peer teacher did not assist the principal in performing the evaluations and making subsequent recommendations on how to correct the deficiencies. But there is no requirement that more than one person conduct the evaluation, and respondent (and his union representative) did not request that someone other than principal McMullen perform the observation. The expert further contended the Board should have assigned a peer teacher to assist respondent throughout this process. She also recommended that the Board send him to various seminars relating to his deficient areas. Again, however, there is no statutory requirement that a school board provide this type of assistance, especially when other forms of assistance and opportunities being given the teacher are adequate. Finally, the criticism that the Board did not adequately formalize its planned assistance measures into a written document is deemed to be unavailing. Because the assistance and opportunties provided respondent were adequate, the Board met its statutory obligation to provide "assistance and inservice training opportunities to help correct the noted performance deficiencies." Summary After being evaluated in a fair and impartial manner, and receiving timely and adequate notice of his deficiencies, as well as adequate assistance and opportunities to correct those flaws, respondent did not remediate a noted performance standard and related indicator during two consecutive school years. Therefore, the Board could properly change respondent's contract status from PSC to annual at the end of school year 1994-95 and decline to renew his contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order terminating respondent from employment by not renewing his 1995-96 contract. DONE AND ENTERED this 4th day of January, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 4th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2988 Respondent: 1-3. Partially accepted in finding of fact 2. Partially accepted in findings of fact 2 and 3. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 1. Partially accepted in finding of fact 10. 9-12. Partially accepted in finding of fact 11. Partially accepted in finding of fact 10. Rejected as being unnecessary. 15-17. Partially accepted in finding of fact 12. 18-19. Rejected as being unnecessary. 20-21. Partially accepted in finding of fact 44. 22-35. Partially accepted in findings of fact 13-20. 36-56. Partially accepted in findings of fact 21-34. 57-67. Partially accepted in findings of fact 40-46. 68-71. Partially accepted in findings of fact 35-37. 72-73. Partially accepted in finding of fact 39. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: J. Victor Africano, Esquire P. O. Box 1450 Live Oak, Florida 32060-1450 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, Florida 32399-1700 Charles F. Blaylock, Jr. Superintendent Suwannee County School Board 224 West Parshley Street Live Oak, Florida 32060-2396 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent may terminate Respondent's professional service contract for just cause, including a failure to correct performance deficiencies, pursuant to sections 1012.33(1)(a) and 1012.34(4), Florida Statutes.
Findings Of Fact Background In 1982, Respondent earned a bachelor of science degree in education from Central Michigan University where he majored in math and minored in history. The next year, Petitioner hired Respondent and assigned him to Cooper City High School, where he taught math and coached cross country and track. While teaching at Cooper City, Respondent also served as an adjunct math teacher at Broward Community College from 1992 to 1995. In 2000, Respondent transferred from Cooper City to AHS, where he taught math courses ranging from remedial to advanced. In 2006, Respondent earned a master's degree in teaching mathematics from Florida Atlantic University. On May 26, 2014, AHS Principal Angel Almanzar wrote a letter to the Superintendent recommending the dismissal of Respondent, and, on June 6, 2014, the Superintendent wrote a letter to Respondent advising that he would recommended his dismissal to Petitioner. Respondent has not taught at AHS since May 2014. While employed at AHS, Respondent diligently discharged his instructional duties. Among the first teachers to arrive at school each day, always wearing a tie, Respondent typically reported for duty at AHS between 6:15 a.m. and 6:30 a.m., which was 30 to 45 minutes before teachers were required to report. When necessary, Respondent stayed late and made himself available to meet with students during lunch. Recently retired IB Coordinator, Hallie Hooper, who taught 31 years for Petitioner, observed Respondent teach at AHS from 2001 through 2014. Focusing particularly on Respondent's Algebra II classes, Ms. Hooper found Respondent highly effective and knowledgeable about his subject and how to teach it, starting on time and teaching "from bell to bell." Although not "warm and fuzzy" with his students, according to Ms. Hooper, Respondent talked with them as he taught the daily lesson and checked the students' work during class. As Ms. Hooper noted, Respondent's students often complained that his course was too hard, but later, reflecting on how much they had learned, many were grateful for the demands that Respondent had placed on them. The record contains only limited evidence of more recent data of the academic achievement of Respondent's students. This evidence supports Ms. Hooper's assessment of Respondent's effectiveness as a teacher. In the 2008-09 school year, Respondent's math students enjoyed the greatest learning gains among AHS math students. In the 2011-12 school year, 80.6% of Respondent's regular Geometry students passed the end-of-course (EOC) exam, compared to AHS's Geometry EOC passing rate of 60%. In the same school year, when Respondent took over teaching IB math from the former chair of the AHS math department, William Peacock, the passing rates improved to 81% (13 of 16 students) in IB Math Studies and 80% (four of five students) in IB Calculus. Under Mr. Peacock, during the preceding school year, the passing rates had been 63% (12 of 19 students) among the IB Math Studies students and 50% (two of four students) and the IB Calculus students. Respondent's assignment to teach the demanding IB math classes followed the recommendation of Mr. Peacock, who based his suggestion on Respondent's knowledge of mathematics and hard work as a classroom teacher. For over 10 years, Mr. Peacock had received students who had taken math classes from Respondent, and Mr. Peacock had found these students to have been well prepared by Respondent for the next level of math. One year after Mr. Peacock's departure, AHS administrators assigned Respondent to teach remedial classes, including, possibly for the first time, Informal Geometry. Informal Geometry is a course that combines instruction in geometry with remedial instruction in Algebra I for students who are required to retake the Algebra I EOC exam to pass Algebra I. A student must obtain a certain number of math credits to obtain a high school diploma, so passing math classes has always been important. At about the same time that Respondent was assigned to teach Informal Geometry, passing at least certain math classes also required students to pass the standardized EOC exam, regardless of their grades for the class. Informal Geometry students who have failed the Algebra I EOC exam review the Algebra I curriculum and retake the Algebra I EOC exam up to three times in the succeeding school year--in September, December, and May--in order to recover the credit for Algebra I. By the time that Respondent was assigned to teach the class, Informal Geometry was therefore a high-stakes class for students seeking a diploma. The September retake of the Algebra I EOC exam is so early in the school year that the passing rates of Informal Geometry students indicate little about the effectiveness of their Informal Geometry teacher. But the passing rates of students taking the December and May retake exams reflect considerably on the Informal Geometry teacher's effectiveness. In December 2013, the AHS passing rate on the Algebra I retake exam placed the school eighth in Broward County, which by all accounts was a major achievement for AHS,2 many of whose students are below grade level in math. The credit for the school's success at the December 2013 retake of the EOC of Algebra I lies with Respondent, who was likely the only teacher of Informal Geometry at AHS.3 During this period of positive student learning in Respondent's classroom, Petitioner revamped its teacher evaluation system. In 2010 or 2011, Petitioner adopted a teacher evaluation system based on the work of Dr. Robert Marzano, including Dr. Marzano's iObservation® form. The rollout of this new teacher evaluation system was a work in progress during the years at issue in this case. The iObservation® form is a dual-purpose document to promote the professional growth of teachers and to evaluate the performance of teachers. This case involves the use of the iObservation® form for the evaluation of teachers. The iObservation® form comprises 60 strategies or criteria among four domains: Domain 1, which is instructional; Domain 2, which is planning and preparation; Domain 3, which is self-assessment; and Domain 4, which is professionalism. Domain 1 contains 41 criteria. Each criterion is accompanied by means by which an observer may assess the extent to which a teacher complies with the criterion. For Domain 1, these means are set forth as items of "Teacher Evidence" and items of "Student Evidence." Observers score criteria by issuing "datamarks" indicating the extent to which a teacher is complying with a criterion. The datamarks are "Not Using," "Beginning," "Developing," "Applying," and "Innovating." At the same time that Petitioner was adopting its new Marzano-based evaluation process, Respondent's grading policy and practices were increasingly drawing the attention of AHS administrators. Respondent assigned many Ds and Fs to his students, although the record is insufficiently developed to detail Respondent's full-year grades and compare them to the full-year grades of his comparable colleagues. Petitioner attributes the poor grades to Respondent's incompetence as a teacher, as documented by numerous completed iObservation® forms showing Respondent's failure to conform to the Marzano method of teaching. Respondent counters that the poor grades are due to two factors: 1) AHS administrators routinely allowed unqualified students to register for advanced courses and 2) students in remedial courses were unmotivated and did not try. Respondent was not the first math teacher at AHS to issue lots of poor grades, including in more advanced math classes. Toward the end of his tenure at AHS, Mr. Peacock failed upwards of 60% of his students in an Advanced Geometry class after AHS administrators declined to approve his request, at the start of the year, to transfer a number of unqualified students to regular Geometry. Conceding the obvious, Respondent's direct supervising administrator for the 2012-13 and 2013-14 school years, Assistant Principal Leslie Farr, allowed that there is "some truth" to Respondent's claim that the students were at fault for failing. At minimum, Respondent did not assign poor grades randomly or mistakenly. In this sense, the students earned these grades. The difficult--and, on this record, unanswerable--question is whether different teaching practices would have reduced the numbers of full-year Ds and Fs. More resolvable is the proper issue of the extent of Respondent's compliance with Dr. Marzano's strategies. Petitioner's first witness, former AHS Assistant Principal Errol Evans, was called to preview Respondent's deficiencies during the 2010-11 and 2011-12 school years when he observed Respondent. Assistant Principal Evans testified that he found that Respondent did not use any of the 41 Domain 1 criteria contained in the iObservation® form. This claim is difficult to credit, given the comprehensiveness of these criteria, the multiple levels of implementation recognized in the iObservation® form, and Respondent's record of student achievement during this period.4 Assistant Principal Evans also testified that he found Respondent to be "demeaning" and "insulting" to his students, and he left Respondent's classroom "totally appalled." Assistant Principal Evans added that he suggested that Respondent try various Marzano strategies. At times, Respondent flatly refused. At other times, he agreed to appear at teachers' meetings at which the Marzano strategies would be discussed, but did not show. In both of these responses, Respondent exhibited, in the words of Assistant Principal Evans, "a level of arrogance unparalleled." Respondent's defiant refusal to use Marzano strategies, his demeaning and insulting treatment of his students that left his immediate supervisor totally appalled, and his taunting failure to show at Marzano teacher meetings that he had explicitly told his immediate supervisor that he would attend--in sum, an unparalleled display of arrogance--drew two responses from Assistant Principal Evans and Principal Almanzar: a satisfactory evaluation for 2010-11 and a satisfactory evaluation for 2011-12. Likely, as Assistant Principal Evans conceded, the evaluations were satisfactory because Respondent's students performed better than the other AHS math students. The Administrative Law Judge finds that, in describing Respondent's teaching performance, Assistant Principal Evans has indulged in a little hyperbole to help his employer make its case. On at least one occasion during the 2011-12 school year, Principal Almanzar was impressed with one device used by Respondent--a device that Petitioner now cites as a problem. Respondent has long adhered to the practice of crediting and debiting points for correct and wrong answers to questions that he poses to the class. On "no-risk Fridays," though, students did not lose points for wrong answers. Respondent seemed to implement this class-participation device in such a way as to give students greater opportunities to win rather than to lose points, although this feature of the device was not readily apparent to students. In April or May 2012, Principal Almanzar observed Respondent use this academic game in a regular Geometry class, which eventually scored better than other AHS regular Geometry classes. After the class, Principal Almanzar, visibly impressed, suggested that Respondent present this device at a professional learning committee meeting. At the end of the 2011-12 school year, Assistant Principal Evans was replaced by Assistant Principal Farr. Over the course of the 2012-13 school year, Assistant Principal Farr conducted several observations of Respondent using the iObservation® form, which is described in detail below. Averaging all of the datamarks of Assistant Principal Farr and the datamarks of two other administrators who performed two observations, Respondent's IPS was 2.414, which was at the upper end of Needs Improvement, just short of the 2.5 threshold for Effective. His Student Growth Score (SGS), which was the same for all teachers that year, was 3.0, which was Effective. For the 2012-13 school year, the IPS was weighted at 60% and the SGS was weighted at 40%, so Respondent's Final Score was 2.648, which was at the lower end of Effective. For Domain 1, Respondent received 16 datamarks of Applying or Developing (which earned the same number of points for 2012-13 only), 23 datamarks of Beginning, and 4 datamarks of Not Using. For Domains 2 through 4, Respondent received 8 datamarks of Applying or Developing, 2 datamarks of Beginning, and 1 datamark of Not Using. About 10% of Respondent's datamarks, cumulatively and in Domain 1, were Not Using. Relations between the AHS administrators and Respondent were strained during the 2012-13 school year. AHS administrators had to deal with the fallout from Respondent's bad grades and disciplinary referrals and believed that better teaching would eliminate these problems. Believing that he was an effective teacher, Respondent accused AHS administrators of failing to support his practice of assigning realistic grades that might motivate the students to prepare earnestly for EOC and other high-stakes testing. On October 11, 2013, Assistant Principal Farr advised Respondent that it had been unprofessional and impolite of him three days earlier to have placed copies of a memorandum from an AHS administrator critical of some act or behavior of Respondent in the school mailboxes of other teachers. When Assistant Principal Farr directed Respondent not to do it again, Respondent replied that Assistant Principal Farr lacked the authority to prohibit him from doing so and, whenever an administrator gave him something "stupid," he would copy and disseminate it to the other teachers. Assistant Principal Farr issued Respondent a reprimand for his defiance on October 31, 2013. Not long after this incident, probably early in the second semester of the 2012-13 school year, Principal Almanzar initiated a cycle of assistance for Respondent due to the administrator's concerns about Respondent's delivery of curriculum, failure to conform to the Marzano strategies, poor relationships with students, excessive number of disciplinary referrals, and defiance toward administrators, but mostly because Respondent was assigning poor grades to too many students. The cycle of assistance did not focus on particular deficiencies perceived by Principal Almanzar. Principal Almanzar selected two coaches for Respondent: Maxine Spadaro, who was a math curriculum coach at AHS, and Linda Kal Sander, who was a literacy coach at AHS. Both coaches produced detailed records of their assistance during the 2012-13 school year. These emails reveal both coaches to be hard-working and capable professionals in their respective educational fields. As of the hearing, both coaches remained employed by Petitioner, and the Administrative Law Judge has credited their contemporaneous emails over elements of their testimony, which has been shaped somewhat by their knowledge of their employer's interest in securing the dismissal of Respondent. By email dated January 15, 2013, Ms. Kal Sander informed Respondent that she had been asked to support him in implementing Dr. Marzano's principles in engaging students. She stated that she visited Respondent's classroom the prior month to observe his teaching methods. Ms. Kal Sander advised that the research suggests that he should stay with a student who has given a wrong answer until he gets the right answer, rather than leave him and move on to another student. By email dated January 24, 2013, Ms. Spadaro documented her first observation a few days earlier. She noted that she had seen students answering questions after being called upon, earning one point for correct answers and losing one point for incorrect answers--she added, "with student approval." Ms. Spadaro has spoken with Respondent about penalizing a student for a wrong answer, and Respondent had assured her that he did not really do so when recording class participation grades. Ms. Spadaro had replied that the students did not know that. The January 24 email acknowledges that Respondent knew the names of the students on whom he called. The email adds that, as Respondent gave the answers to the homework assignment, most of the students did not have their homework assignment in front of them, and, when Respondent asked if anyone had any questions, only one student asked a question. The January 24 email suggests that Respondent wait a few seconds after asking a question and then call on any student, not always a student who had raised her hand; require students to have their homework assignments open on their desks and go over the answers more slowly; and, instead of asking the class if anyone has any questions, use the "four-finger method," in which a student may signal with his fingers the extent of his understanding, or lack of understanding, without embarrassing himself with his peers. By email dated January 29, 2013, Ms. Kal Sander memorialized her classroom observation earlier that day. The email commends Respondent for his "thorough . . . explanations . . . to your students." The email documents that Respondent had integrated technology, supported his students, provided direct instruction from the concrete to the abstract, executed a gradual release of responsibility, checked for understanding and accuracy among the students, questioned the student whose board work was incorrect, suggested support materials that students might use during independent practice, and demonstrated "withitness" and easy rapport with the students. Ms. Kal Sander's email concludes: "If I were to offer any advice concerning the delivery of this lesson, I would only suggest that, when releasing the task to the students, they "might have the opportunity" to work with a partner or check each other's work prior to regrouping. Ms. Kal Sander noted that this was a minor suggestion because of the presence of merely four students in the class, suggesting that she had observed an IB class. By email dated February 5, 2013, Ms. Spadaro confirmed an observation of Respondent's Geometry class earlier in the afternoon. She saw Respondent calling out answers from the homework assignment and asking if anyone had any questions. She noted that students appeared lost, although no one raised a hand. Respondent projected a test on a board and went over the answers, showing how the problems are solved. Only one student raised his hand during this lesson. Noting that most of the students had failed the test, Ms. Spadaro asked how Respondent could ensure that the students had assimilated the information on the test. She suggested that Respondent allow the students to give their answers for their homework and explain how they arrived at their answers. Ms. Spadaro recommended that Respondent continue to use the board to explain problems to help students who are visual learners. She advised Respondent to re-teach the materials on the test that most of the students had failed. By email dated February 11, 2013, Ms. Spadaro memorialized an earlier suggestion that Respondent set up some of his lessons so that the students could work in groups of two or three because cooperative learning usually meant active learning. Ms. Spadaro offered to help develop the groupings. By email dated February 14, 2013, Ms. Kal Sander reviewed an observation of a Geometry class that had taken place two days earlier. She found the students seated in pairs, the lesson presented in smaller chunks, and rules governing the subject--the geometric form known as a rhombus--given orally and in writing on the board, but no integration of technology. During a question-and-answer session, Respondent once stayed with a student until he successfully answered the question, which Ms. Kal Sander had suggested in her January 15 email. Other times, though, Respondent reverted to the warning that a wrong answer would cost a point and asked other students to point out the error in the answering student's wrong answer, after which only one student raised her hand. Ms. Kal Sander offered to discuss with Respondent how to make the question-and-answer session more "'rewards' based." Ms. Kal Sander cited two pages from a book authored by Dr. Marzano suggesting four strategies for managing questions and responses--wait times, response cards, choral responses, and response chaining--and four ways of analyzing errors--faulty logic, attacks, weak reference, and misinformation. Lastly, Ms. Kal Sander criticized Respondent for publicly reprimanding a student who had not brought his materials to class, suggesting that Respondent project the materials onto a wall or screen. By email dated February 15, 2013, Ms. Spadaro documented a classroom observation the prior day. The email states that, on her arrival, the class was transitioning from a test to a lesson, but not all of the students had finished the test. Respondent explained the lesson with examples on the board and called on students to explain problems, as she had recommended in her February 5 email. She noted that Respondent used the "four-finger method" to ensure student comprehension, as she had recommended in her January 24 email. Ms. Spadaro suggested that, rather than present a lesson while students are finishing a test, Respondent present enrichment or review material. She also suggested that Respondent use visuals while presenting materials. By email dated February 20, 2013, Ms. Spadaro acknowledged having observed Respondent earlier that day. She had seen the students take a 20-minute quiz, after which Respondent projected the answers on the board for review. Unfortunately, Respondent also complained to the students that he was being harassed by AHS administrators, including Ms. Spadaro. Ms. Spadaro objected that Respondent's comments concerning her classroom observations were "unprofessional" and demanded that Respondent behave in a more professional manner. He did not again complain about Ms. Spadaro in front of his students. The next day, Respondent had a similar episode with Ms. Kal Sander. By email dated February 21, 2013, Ms. Kal Sander documented her classroom observation earlier in the day. When Respondent opened the classroom door, he saw Ms. Kal Sander and asked if she was there to help him. She tactfully replied "yes," if he should need her help. Respondent answered that he did not need her help and she had not helped so far. Respondent added that Ms. Kal Sander's presence was "harassment." Ms. Kal Sander politely objected to Respondent's comments and left the classroom. Respondent never again embarrassed her in the presence of students. By email dated February 22, 2013, Ms. Spadaro noted a classroom observation of the same date. She found Respondent collecting student work and going over the problems from an assignment. After finishing this task, Respondent then reviewed workbook assignments. He called on various students to give and explain answers with no risk of losing points, as she had suggested in her January 24 email, although this was a "no-risk Friday." Ms. Spadaro noticed that more students than usual participated. When reviewing the geometric mean, Respondent kept going through students until one finally answered the question, but never explained the basis for the answer. Ms. Spadaro suggested that Respondent "continue" helping visual learners by drawing on the board. She also suggested not penalizing students for wrong answers. Lastly, she recommended that Respondent explain incorrect answers, adding that, if he grouped his students, the other students in the group could help students who were confused. By email dated February 27, 2013, Ms. Spadaro responded to Respondent's request for EOC support and provided him with references to useful materials. By email dated March 14, 2013, Ms. Spadaro stated that it was nice seeing Respondent earlier on that day and discussing certain EOC data. By email dated March 14, 2013, Ms. Spadaro stated that it had been nice having a conversation with Respondent about the EOC data. The email confirms that they agreed that Respondent would continue to use class warm-ups that incorporated benchmarks that would be covered on the Geometry EOC exam. By email dated March 21, 2013, Ms. Spadaro noted that she had observed Respondent earlier in the day. She found all but one of the students were engaged in working on a practice problem in the workbook. The lone student had forgotten his workbook, and Respondent had warned him that he would lose a point if he asked to borrow a workbook. The students were all working independently with their desks in rows, as Respondent delivered the lesson by direct instruction. Respondent again used the "four-finger method" to assure student understanding, as Ms. Spadaro had advised in her January 24 email. Ms. Spadaro recommended not penalizing the student for sharing a workbook. She also suggested allowing the students to work in groups of two or three. By email dated April 5, 2013, Ms. Kal Sander documented an observation earlier that day. She appreciated the notes that Respondent had placed on the board for the students as they worked on practice EOC questions. Referring to a specific principle authored by Dr. Marzano, Ms. Kal Sander asked if Respondent should allow each student three to five minutes to discuss his or her answers to the practice EOC questions with another student before turning in his or her work, so that the students could review similarities and differences, examine errors, and revise knowledge. This suggestion implies that small-group instruction may take place by this means and does not invariably require moving desks out of rows. By email dated April 12, 2013, Ms. Kal Sander complimented Respondent: "I am always amazed how quickly the concepts [of geometry] come back to me when you explain them the way that you do. I appreciated that you projected the reference sheet and gave so many explanations for solving the sector problems." Referring to the fact that she had observed a "no-risk Friday," Ms. Kal Sander saw that the same two or three students were the only ones raising their hands, suggesting that the risk of losing points might not have been the major deterrent to student participation that Petitioner now contends that it was. By email dated April 16, 2013, Ms. Spadaro noted a brief classroom visit on that day. She witnessed Respondent's reviewing content for an upcoming test with visuals on the board, student participation, and a clear statement of expectations. By email dated April 26, 2013, Ms. Spadaro documented classroom observations of April 24 and 26. On April 24, Ms. Spadaro found Respondent walking around the room monitoring students taking the daily quiz, reviewing answers by calling on students individually, asking students to explain their answers, and using visuals to explain problems. On April 26, Ms. Spadaro found the same methods, adding that she also saw a lot of student interaction. The final emails during the 2012-13 school year suggest a successful conclusion to the cycle of assistance. The two coaches noted Respondent's productive use of several Marzano strategies, acknowledged that Respondent had tried many of their suggestions, and cited no major outstanding problems. 2013-14 School Year Cycle of Assistance and PDP However, Principal Almanzar continued the cycle of assistance for Respondent in the 2013-14 school year. There is no evidence of any communications between the coaches and the AHS administrators, other than the copying of the coaches' emails to one of the administrators. The coaches were evidently reassigned the task of inducing Respondent to adopt more Marzano strategies, especially small-group instruction, more of the time. For the 2013-14 school year, Principal Almanzar added John O'Brien to those who were providing assistance to Respondent. Not a coach, Mr. O'Brien is a "Marzano peer reviewer" from the District office. Mr. O'Brien previously had served seven years as a law enforcement officer and initially had come to work for the District as a "security specialist," but had taught, mostly math, for a total of 16 years. Reminiscent of Assistant Principal Evans, Mr. O'Brien painted an unflattering portrait of Respondent in the classroom, mostly, but not entirely, in broad strokes. Mr. O'Brien testified that he observed negativity on Respondent's part, such as warning inattentive students that they would get bad grades if they did not behave and pay attention. One time, Respondent did so after noticing seven or eight students who were visibly disengaged. When the students persisted in ignoring him, Respondent warned the students that he was going to call their homes or an administrator, and they would be out of class. He finally sent them to the office and asked if anyone else wanted to go with them. Three more students joined them. Mr. O'Brien testified that he heard Respondent say to the class that the administration was out to get him and Assistant Principal Farr was not a good Marzano evaluator. Mr. O'Brien testified that Respondent only occasionally used effective instructional practices. Mr. O'Brien also witnessed a tense encounter between Respondent and Ms. Kal Sander in March 2014, which is described below. Otherwise, Mr. O'Brien's testimony lacked much detail, even though he had observed Respondent on numerous occasions in the classroom. In particular, Mr. O'Brien did not describe any of Respondent's teaching practices, regardless of the extent to which they conformed to the Marzano method. The coaches and even Assistant Principal Farr in his 2013-14 observations found some good things about Respondent's teaching. As already noted, Respondent's students made positive academic gains, and his evaluations in prior years were satisfactory. The lack of balance in Mr. O'Brien's depiction of Respondent undermines Mr. O'Brien's credibility. One year later, Mr. O'Brien's largely conclusory testimony disparaging Respondent is outweighed in particular by the contemporaneous, detailed evidence provided by the coaches. The coaches, whose job title suggests a primary responsibility to train and counsel, found time to document what they observed in Respondent's classroom, but a former law enforcement officer and Marzano peer reviewer, whose job title suggests a primary responsibility to assess, did not. Ultimately, the conclusory testimony of Mr. O'Brien, like that of Assistant Principal Evans, has been rejected as unworthy of belief. Ms. Kal Sander also did not document her 2013-14 observations of Respondent, as she had the previous year. However, she recalled clearly one incident. Likely in early March 2014, Ms. Kal Sander modeled cooperative learning in small groups to demonstrate how Respondent could enhance student engagement and facilitate monitoring of student understanding. The presentation had required Ms. Kal Sander to master the subject matter of the lesson, and she had worked hard to do so. During the class, the students were engaged and turned in an assignment that they had done during class. After the students had left the room, a brief meeting took place with Ms. Kal Sander, beaming in pride; Respondent, stewing in frustration; and Mr. O'Brien, witnessing. Instead of complimenting Ms. Kal Sander, Respondent claimed that she had not done anything that he was not doing, and he could get the same results in terms of all of the students turning in their classroom assignments at the end of the period. Ms. Kal Sander demanded to know how Respondent could say that when 59% of his students had Fs in the class. Respondent replied that she had not been very effective. Ms. Kal Sander stormed out of the room in tears, returning briefly to tell Mr. O'Brien to tell the administration that she was done coaching Respondent. As she turned to walk away, she uttered, to herself, a one- or two-word expletive description of Respondent that, unfortunately, he overheard. Ms. Kal Sander's momentary lapse was nothing more than her unconsciously giving audible utterance to a passing thought after an exhausting teaching performance and an adverse review of her work by Respondent. Respondent did not react to her comment, adding some credibility to his self-description as an "old fashioned guy." As a result of Respondent's decision not to react to Ms. Kal Sander's comment, the meeting after class was nothing more than a frank exchange of opinions between Respondent and Ms. Kal Sander. At the hearing, Respondent elaborated on his frustration about Ms. Kal Sander's teaching performance. First, Respondent had tried on numerous occasions to have Mr. O'Brien, who, unlike Ms. Kal Sander, had formerly taught math, model the Marzano method, but Mr. O'Brien had declined because he was concerned that the class might not go well. Second, Ms. Kal Sander had not modeled cooperative learning so much as team teaching because, while she taught, Mr. O'Brien circulated through the room monitoring the students for understanding; a lone teacher could not replicate the work of two teachers. By email dated March 7 to Principal Almanzar, Ms. Kal Sander alluded to her unpleasant exchange with Respondent after she had taught his class, and she told Principal Almanzar that she was "withdrawing support as I feel that I have a right to work [sic] a non-hostile environment." Ms. Kal Sander's description of her sometimes-fraught relationship with Respondent as "hostile" is rejected as unsupported by the record. Ms. Spadaro documented her contacts with Respondent during the 2013-14 school year, but most of the early emails seem to be more in her capacity as math curriculum coach than as Respondent's coach. On August 29, 2013, Ms. Spadaro asked Respondent about the failure of one of his classes to use the computer lab during its scheduled time. The same day, Respondent emailed her that the class had refused to cooperate in the lab, and he had had to end the session. By email dated September 9, 2013, Ms. Spadaro offered to help Respondent plan to prepare his Informal Geometry students to retake the Algebra I EOC exam in December. By email dated September 12, Ms. Spadaro attached several practice tests and other test-preparation materials in connection with the Algebra I EOC retake exam in December--the September retake exam being one week away, so Respondent presumably did not have enough time to help students taking this test to prepare for it. By email dated October 22, 2013, Ms. Spadaro asked if Respondent had any questions about some teaching materials that she had given him several days earlier. By email dated November 5, 2013, Ms. Spadaro noted that only one student from the first-period class had taken a certain assessment in a test-preparation program. She asked Respondent to have the rest of his students take this assessment as soon as possible. By email dated November 6, 2013, Ms. Spadaro advised Respondent of some additional teaching materials that had become available for his use. More clearly returning to her role as a coach in the cycle of assistance, by a second email dated November 6, Ms. Spadaro stated that she had thought a lot about a recent conversation she and Respondent had had concerning grouping. She admitted, "I fought it many years ago, and finally tried it. It does work, no matter what level students you have." She asked Respondent to take the time to read the research supporting small-group instruction. By email dated November 15, 2013, Ms. Spadaro provided Respondent with more class warm-ups and promised to visit an Informal Geometry class to help prepare the students for the December EOC re-exam. By email dated November 20, Ms. Spadaro noted that Respondent had used a practice test during her observation, as a warm-up, in preparation for the EOC re-exam. She asked how Respondent knew that the students had understood the problems that he had gone over because he had not undertaken a check for understanding. She also mentioned additional warm- ups that she had transmitted to Respondent and explained how they related to the monthly assessment that the students were taking. By reply email dated later in the day on November 20, Respondent stated that he had complied with her directive to go over an Algebra I EOC practice exam. By email dated December 13, 2013, with a copy to Assistant Principal Farr, Ms. Spadaro complimented Respondent on a "nice job" the prior day in having his students work collaboratively in small groups. Ms. Spadaro agreed with Respondent's comment that working with partners, manipulatives, and physical movement had helped a lot. Ms. Spadaro stated that student engagement had neared 100%, but dropped dramatically when the desks were returned to rows for direct instruction. Recognizing that there will always have to be some direct instruction, Ms. Spadaro suggested that Respondent try leaving the desks in small groups during his lectures. By email dated January 10, 2014, Ms. Spadaro documented an observation three days earlier. She noted that Respondent's explanation of Venn diagrams had been "well done," but some students had appeared puzzled during the first independent assignment. Although a couple of the students had asked their neighbors for help, most had not. She asked if working in groups would have helped these students. Ms. Spadaro also asked how Respondent knew that the students had understood the lesson because Respondent had answered his own questions, although he had walked around the room a couple of times and checked the students' work. On February 3, 2014, Principal Almanzar and Assistant Principal Farr issued a PDP for Respondent. The PDP identifies deficiencies as iObservation® Criteria 1, 2, 6, 7, 8, 9, 15, 18, 19, 24, 26, and 28, all of which are discussed in detail below. The PDP contains a review date of March 20 and a deadline of May 13. The PDP warns that a failure to demonstrate "mastery" of the cited deficiencies will result in a "less than effective BrIDGES evaluation" or dismissal from employment. "Mastery" is not defined in the PDP, nor, as discussed below, in the iObservation® form.5 Principal Almanzar's belated identification of Respondent's deficiencies was news to Ms. Spadaro, who would have known better than Principal Almanzar what, if any, deficiencies undermined Respondent's effectiveness as a teacher. In her first email after the PDP, which is dated February 4, Ms. Spadaro refers to the PDP indirectly by noting: "Now that we know, with specificity, the areas that are targeted for support, I would like to continue to collaborate with you to effectively address administrative concerns." By email dated February 11, Ms. Spadaro recommended that Respondent set up some of his lessons to allow his students to work in groups of two or three. She counseled that "cooperative learning more often than not engages active learning." The email offers additional help for forming groups. By email dated February 12, Ms. Spadaro confirmed her delivery a few days earlier of a "check for understanding" rubric and noted that she witnessed Respondent's using this strategy on the previous day. She offered to model the use of this strategy. She suggested that Respondent contact another teacher, who had other rubrics posted in his classroom. By email dated February 20, Ms. Spadaro provided Respondent with two links to Marzano practices, including grouping, and a third link to grouping. She advised that Respondent put some thought into grouping his students, considering such matters as what were his goals. Ms. Spadaro offered to help Respondent decide how to implement small-group instruction. By email dated March 5, Ms. Spadaro documented a discussion that she had with Respondent earlier in the day on tracking student progress. Ms. Spadaro stated that one of Respondent's students had approached her with a concern about a 30-question quiz that he had given the students the other day. The student had said that many of the students had not had enough time to finish the test, so Respondent had offered them the chance to stay over lunch to finish it. Not all students had accepted this offer. Ms. Spadaro pointed out that, for some students, this is their only meal of the day. It is unclear whether Ms. Spadaro knew that Respondent was already making himself available to students before and after school. More importantly, Ms. Spadaro asked Respondent what really had happened--specifically, had there been enough time to do the test in the 50 minutes of class time? If not, she suggested that he should have added more time or shorten the quiz. She concluded with a request: "Please let me know . . . how you handled the situation so that I can field any other issues on this matter." Regardless of whether this is a reference to questions or complaints from other students or AHS administrators, Ms. Spadaro seems to have been trying to acquire the information necessary to defend Respondent. By email dated March 19, Ms. Spadaro provided Respondent with a Powerpoint® presentation on iObservation® Criterion 1. On this anti-climactic note, Respondent's cycle of assistance came to an end. Collective Bargaining Agreement and Memorandum of Understanding The collective bargaining agreement (CBA) in effect for the 2013-14 school year provides for "progressive discipline" based on "just cause." CBA, art. 18, para. B.1.a. The range of discipline includes reprimand, suspension, demotion, and termination. Id. At the start of the 2013-14 school year, according to the CBA, the purpose of the teacher-evaluation process was "the improvement of individual and collective teaching performance resulting in optimal student learning." CBA, art. 18, para. F.1.a. The CBA acknowledged that "[e]ducational research has not identified a single uni-dimensional construct called 'effective teaching.' Teachers must pursue a variety of models of effective teaching." Because the educational environment is "complex and variable," the CBA continued, "great weight should be placed on teacher judgment to guide the activities of student learning." CBA, art. 18, para. F.1.b. The CBA added that the teacher-evaluation process must help the teacher in "improving deficiencies as well as contribute to their professional growth and development." CBA, art. 18, para. F.1.c. Each of the provisions set forth in the preceding paragraph was superseded by agreement between Petitioner and BTU. Memorandum of Understanding Between [Petitioner and BTU] dated October 8, 2013 (MOU), para. 22. The Marzano teaching strategies--having ripened from suggestions into mandates-- override "teacher judgment," as the Marzano method now set forth the single construct of "effective teaching." Noting that the new evaluation system, BrIDGES, is based on the "Marzano Professional Growth Model,"6 the parties to the MOU set forth the entire teacher-evaluation process, of which the iObservation® form is a part. MOU, paras. 1-2. According to the MOU, BrIDGES comprises an IPS and a Student Data Score (SDS, which replaces the above-described SGS used in the preceding school year); a Deliberate Practice Score (DPS) may be considered part of the IPS or a separate score. MOU, paras. 2-3. Either way, for the 2013-14 school year, a teacher's Final Score was a product of her IPS weighted at 49%, DPS weighted at 1%, and SDS weighted at 50%. Id. Simplifying matters for the 2013-14 school year, the DPS was set at 3 points for all teachers completing a self-assessment form. MOU, para. 3. Judging from Petitioner Exhibit 16, Respondent completed the self-assessment because he received 3 points for the DPS. Also as reflected in Petitioner Exhibit 16, Respondent was assigned 3 points for the SDS--again, it seems, based on the points assigned to all of Petitioner's teachers, or at least all AHS teachers. The MOU states that the Florida Department of Education would use the Value Added Model to generate SDSs based on student achievement data, but the document notes that both sides were still trying to determine this score. Id. at para. 12. For 2013-14, the IPS was a product of the Domain 1 scores weighted at 68% and Domains 2, 3, and 4 scores weighted at 32%. Id. at para. 3. In awarding datamarks for Domain 1, an observer "shall consider supplemental documentation." Id. at para 5. But the MOU does not define "supplemental documentation," and the meaning of this requirement in Domain 1 is uncertain. In awarding datamarks for Domains 2 through 4, an observer "shall consider supplemental documentation, evidences, and/or artifacts provided by the educator." Id. These requirements make more sense due to the items of Teacher Evidence and, for Criteria 42 and 44, items of Planning Evidence that are discussed below. The MOU requires teachers to receive at least three observations--a snapshot, an informal, and a formal--and at least 45 datamarks, including at least 25 datamarks in Domain 1 and 10 datamarks in Domains 1, 2, and 3. Id. The recommendations for a snapshot observation are 3 to 10 minutes' duration with two to three datamarks, an informal observation are 15 to 25 minutes' duration with 5 to 10 datamarks, and a formal observation are at least 30 minutes' duration with 12 to 15 datamarks. Id. Administrators are to "make every effort to allow for a reasonable amount of time for growth between observations." Id. For the 2013-14 school year, a datamark of Innovating earns 4 points, Applying earns 3 points, Developing earns 2.5 points, Beginning earns 2 points, and Not Using earns 1 point. Id. at para. 5. The MOU adopts the "Averages Model" for the IPS, which produces an average score by adding the points assigned to each datamark and dividing the result by the total number of the datamarks. Id. For 2013-14, the "Overall Evaluation Scale" is Highly Effective from 4.0 to 3.45 points, Effective from 3.449 to 2.5 points, Needs Improvement from 2.499 to 2.0 points, and Unsatisfactory from 1.999 to 1.0 points. Id. The "Overall Evaluation Scale" is in the paragraph of the MOU that describes the IPS calculation, but seems to apply equally to the Final Score that results from combining the IPS, DPS, and SDS in accordance with their above-stated weights. A teacher may be given a PDP once she has received 10 Not Using or Beginning scores, an average IPS of Needs Improvement, and at least three observations, including two formal observations. Id. at para. 11. The MOU states that a "process shall be developed" to provide employees scored as Needing Improvement or Unsatisfactory with "sound professional assistance and development to help correct job performance deficiencies." Id. at para. 15. Using "mentors, coaches, and peer reviewers, [Petitioner] will determine and provide the appropriate training and development." Id. In particular, peer reviewers "will provide feedback and enhanced growth opportunities based on effective teaching strategies." Id. at para 20. During the 2013-14 school year, these elements of the evaluation process had not yet been implemented. The suggestion in the last paragraph that Petitioner will develop policies in the future extends to another provision of the MOU. This provision promises that "procedures shall be developed to address employment decisions for employees rated at each level of BrIDGES. Procedures should address actual rating, employee experience, assistance provided, improvement demonstrated, and other pertinent factors." Id. The MOU thus anticipates that, at some point, employment decisions will be based on a teacher's Final Score, experience, coaching assistance, and demonstrated improvement, among other things. Based on the following findings of fact, it is unnecessary to consider whether Petitioner may presently base an adverse employment decision solely on an IPS or Final Score. Count 4: Failure to Correct Performance Deficiencies iObservation® Form: Domain 1 Domain 1 Criteria The 41 iObservation® criteria for Domain 1 are set forth below. Items of Teacher Evidence and items of Student Evidence accompany each Domain 1 criterion in the iObservation® form. The excerpts omit all items of Student Evidence and, except for Criterion 37, those items of Teacher Evidence for criteria that were not assessed during the 2013-14 school year. Providing Clear Learning Goals and Scales (Rubrics) The teacher provides a clearly stated learning goal accompanied by scale or rubric that describes levels of performance relative to the learning goal. Teacher Evidence Teacher has a learning goal posted so that all students can see it The learning goal is a clear statement of knowledge or information as opposed to an activity or assignment Teacher makes reference to the learning goals throughout the lesson Teacher has a scale or rubric that relates to the learning goal posted so that all students can see it Teacher makes reference to the scale or rubric throughout the lesson Tracking Student Progress The teacher facilitates tracking of student progress on one or more learning goals using a formative approach to assessment. Teacher helps student track their [sic] individual progress on the learning goal Teacher uses formal and informal means to assign scores to students on the scale or rubric depicting student status on the learning goal Teacher charts the progress of the entire class on the learning goal Celebrating Success The teacher provides students with recognition of their current status and their knowledge gain relative to the learning goal. Teacher acknowledges students who have achieved a certain score on the scale or rubric Teacher acknowledges students who have made gains in their knowledge and skill relative to the learning goal Teacher acknowledges and celebrates the final status and progress of the entire class Teacher uses a variety of ways to celebrate success Show of hands Certification of success Parent notification Round of applause Establishing Classroom Routines The teacher reviews expectations regarding rules and procedures to ensure their effective execution. Organizing the Physical Layout of the Classroom The teacher organizes the physical layout of the classroom to facilitate movement and focus on learning. The physical layout of the classroom has clear traffic patterns The physical layout of the classroom provides easy access to materials and centers The classroom is decorated in a way that enhances student learning: Bulletin boards relate to current content Students['] work is displayed Identifying Critical Information The teacher identifies a lesson or part of a lesson as involving important information to which students should pay particular attention. Teacher Evidence Teacher begins the lesson by explaining why upcoming content is important Teacher tells students to get ready for some important information Teacher cues the importance of upcoming information in some indirect fashion Tone of voice Body position Level of excitement Organizing Students to Interact with New Knowledge The teacher organizes students into small groups to facilitate the processing of new information. Teacher Evidence Teacher has established routines for student grouping and student interaction in groups Teacher organizes students into ad hoc groups for the lesson Diads Triads Small groups up to about 5 Processing New Content The teacher engages students in activities that help them link what they already know to the new content about to be addressed and facilitates these linkages. Teacher Evidence Teacher uses preview question before reading Teacher uses K-W-L [Know, Want to Know, Learned] strategy or variation of it Teacher asks or reminds students what they already know about the topic Teacher provides an advanced organizer Outline Graphic organizer Teacher has students brainstorm Teacher uses anticipation guide Teacher uses motivational hook/launching activity Anecdotes Short selection from video Teacher uses word splash activity to connect vocabulary to upcoming content Chunking Content into "Digestible Bites" Based on student needs, the teacher breaks the content into small chunks (i.e. digestible bites) of information that can be easily processed by students. Teacher Evidence Teacher stops at strategic points in a verbal presentation While playing a video tape, the teacher turns the tape off at key junctures While providing a demonstration, the teacher stops at strategic points While students are reading information or stories orally as a class, the teacher stops at strategic points Processing New Information During breaks in the presentation of content, the teacher engages students in actively processing new information. Teacher Evidence Teacher has group members summarize new information Teacher employs formal group processing strategies Jigsaw Reciprocal Teaching Concept attainment Elaborating on New Information The teacher asks questions or engages students in activities that require elaborative inferences that go beyond what was explicitly taught. Teacher Evidence Teacher asks explicit questions that require students to make elaborative inferences about the content Teacher asks students to explain and defend their inferences Teacher presents situations or problems that require inferences Recording and Representing Knowledge The teacher engages students in activities that help them record their understanding of new content in linguistic ways and/or represent the content in nonlinguistic ways. Teacher Evidence Teacher asks students to summarize the information they have learned Teacher asks students to generate notes that identify critical information in the content Teacher asks students to create nonlinguistic representations for new content Graphic organizers Pictures Pictographs Flow charts Teacher asks students to create mnemonics that organize the content Reflecting on Learning The teacher engages students in activities that help them reflect on their learning and the learning process. Teacher Evidence Teacher asks students to state or record what they are clear about and what they are confused about Teacher asks students to state or record how hard they tried Teacher asks students to state or record what they might have done to enhance their learning Reviewing Content The teacher engages students in a brief review of content that highlights the critical information. Teacher Evidence Teacher begins the lesson with a brief review of content Teacher uses specific strategies to review information Summary Problem that must be solved using previous information Questions that require a review of content Demonstration Brief practice test or exercise Organizing Students to Practice and Deepen Knowledge The teacher uses grouping in ways that facilitate practicing and deepening knowledge. Teacher Evidence Teacher organizes students into groups with the expressed idea of deepening their knowledge of informational content Teacher organizes students into groups with the expressed idea of practicing a skill, strategy, or process Using Homework When appropriate (as opposed to routinely) the teacher designs homework to deepen students' knowledge of informational content or practice a skill, strategy, or process. Teacher Evidence Teacher communicates a clear purpose for homework Teacher extends an activity that was begun in class to provide students with more time Teacher assigns a well-crafted homework assignment that allows students to practice and deepen their knowledge independently Examining Similarities and Differences When the content is informational, the teacher helps students deepen their knowledge by examining similarities and differences. Teacher Evidence Teacher engages students in activities that require students to examine similarities and differences between content Comparison activities Classifying activities Analogy activities Metaphor activities Teacher facilitates the use of these activities to help students deepen their understanding of content Ask students to summarize what they have learned from the activity Ask students to explain how the activity has added to their understanding Examining Errors in Reasoning When content is informational, the teacher helps students deepen their knowledge by examining their own reasoning or the logic of the information as presented to them. Teacher Evidence Teacher asks students to examine information for errors or informal fallacies Faulty logic Attacks Weak reference Misinformation Teacher asks students to examine the strength of support presented for a claim Statement of a clear claim Evidence for the claim presented Qualifiers presented showing exceptions to the claim Practicing Skills, Strategies, and Processes When the content involves a skill, strategy, or process, the teacher engages students in practice activities that help them develop fluency. Teacher Evidence Teacher engages students in massed and distributed practice activities that are appropriate to their current ability to execute a skill, strategy, or process. Guided practice if students cannot perform the skill, strategy, or process independently Independent practice if students can perform the skill, strategy, or process independently Revising Knowledge The teacher engages students in revision of previous knowledge about content addressed in previous lessons. Organizing Students for Cognitively Complex Tasks The teacher organizes the class in such a way as to facilitate students working on complex tasks that require them to generate and test hypotheses. Teacher Evidence Teacher establishes the need to generate and test hypotheses Teacher organizes students into groups to generate and test hypotheses Engaging Students in Cognitively Complex Tasks Involving Hypothesis Generation and Testing The teacher engages students in complex tasks (e.g. decision making, problem solving, experimental inquiry, investigation) that require them to generate and test hypotheses. Providing Resources and Guidance The teacher acts as resource provider and guide as students engage in cognitively complex tasks. Noticing When Students are Not Engaged The teacher scans the room making note of when students are not engaged and takes overt action. Teacher Evidence Teacher notices when specific students or groups of students are not engaged Teacher notices when the energy level of the room is low Teacher takes action to re-engage students Using Academic Games The teacher uses academic games and inconsequential competition to maintain student engagement. Managing Response Rates The teacher uses response rate techniques to maintain student engagement in questions. Teacher Evidence Teacher uses wait time Teacher uses response cards Teacher has students use hand signals to respond to questions Teacher uses choral response Teacher uses technology to keep track of students' responses Teacher uses response chaining Using Physical Movement The teacher uses physical movement to maintain student engagement. Maintaining a Lively Pace The teacher uses pacing techniques to maintain students' engagement. Teacher Evidence Teacher employs crisp transitions from one activity to another Teacher alters pace appropriate (i.e. speeds up and slows down) Demonstrating Intensity and Enthusiasm The teacher demonstrates intensity and enthusiasm for the content in a variety of ways. Using Friendly Controversy The teacher uses friendly controversy techniques to maintain student engagement. Teacher Evidence Teacher structures mini-debates about the content Teacher has students examine multiple perspectives and opinions about the content Teacher elicits different opinions on content from members of the class Providing Opportunities for Students to Talk about Themselves The teacher provides students with opportunities to relate what is being addressed in class to their personal interests. Presenting Unusual or Intriguing Information The teacher uses unusual or intriguing information about the content in a manner that enhances student engagement. Teacher Evidence Teacher systematically provides interesting facts and details about the content Teacher encourages students to identify interesting information about the content Teacher engages students in activities like "Believe it or not[!®]" about the content Teacher uses guest speakers to provide unusual information about the content Demonstrating "Withitness" The teacher uses behaviors associated with "withitness" to maintain adherence to rules and procedures. Teacher Evidence Teacher physically occupies all quadrants of the room Teacher scans the entire room making eye contact with all students Teacher recognizes potential sources of disruption and deals with them immediately Teacher proactively addresses inflammatory situations Applying Consequences for Lack of Adherence to Rules and Procedures The teacher applies consequences for not following rules and procedures consistently and fairly. Teacher Evidence Teacher provides nonverbal signals when students' behavior is not appropriate Eye contact Proximity Tap on desk Shaking head, no Teacher provides verbal signals when students' behavior is not appropriate Tells students to stop Tells students that their behavior is in violation of a rule or procedure Teacher uses group contingency consequences when appropriate (i.e. whole group must demonstrate specific behavior) Teachers involves the home when appropriate (i.e. makes a call home to parents to help extinguish inappropriate behavior) Teacher uses direct cost consequences when appropriate (e.g. student must fix something he or she has broken) Acknowledging Adherence to Rules and Procedures The teacher consistently and fairly acknowledges adherence to rules and procedures. Understanding Students' Interests and Background The teacher uses students' interests and background to produce a climate of acceptance and community. Using Verbal and Nonverbal Behaviors that Indicate Affection for Students When appropriate, the teacher uses verbal and nonverbal behavior that indicates caring for students. Teacher Evidence Teacher compliments students regarding academic and personal accomplishments Teacher engages in informal conversations with students that are not related to academics Teacher uses humor with students when appropriate Teacher smiles, nods, etc. at students when appropriate Teacher puts hand on students' shoulders when appropriate Displaying Objectivity and Control The teacher behaves in an objective and controlled manner. Demonstrating Value and Respect for Low Expectancy Students The teacher exhibits behaviors that demonstrate value and respect for low expectancy students. Asking Questions of Low Expectancy Students The teacher asks questions of low expectancy students with the same frequency and depth as with high expectancy students. Probing Incorrect Answers with Low Expectancy Students The teacher probes incorrect answers of low expectancy students in the same manner as he/she does with high expectancy students. For each of the Domain 1 criteria, the datamarks are as follows: Not Using: Strategy was called for but not exhibited. Beginning: Uses strategy incorrectly or with parts missing. Developing: [Complies with the requirement or requirements set forth in the criterion], but the majority of students are not monitored for the desired effect of the strategy. Applying: [Complies with the requirement or requirements set forth in the criterion] and monitors for evidence of the impact of [compliance] on the majority of [students for the desired effect of the strategy]. Innovating: Adapts and creates new strategies for unique student needs and situations in order for the desired effect to be evident in all students. The iObservation® form provides the framework for the collection of teacher-performance data, and the MOU provides the framework for the analysis of these data. The 41 Domain 1 criteria survey a wide range of elements of teacher performance, and each criterion supports a detailed assessment of each of these elements. Due to its breadth and depth, the iObservation® form is a powerful data-collection tool. Domain 1 Datamarks Appendix A is a spreadsheet of Respondent's Domain 1 datamarks for the 2013-14 school year. Four observers conducted 18 observations during which they entered a total of 102 datamarks. Assistant Principal Farr conducted 13 observations and issued 84 datamarks. Principal Almanzar conducted three observations and issued 14 datamarks. Two other AHS administrators each conducted one observation--the first two--and issued two datamarks each. The average score of Respondent's 102 datamarks was 1.799. His average on the seven observations and 54 datamarks before the PDP was 1.685, and his average on the 11 observations and 48 datamarks after the PDP was 1.927. The 102 datamarks covered 25 of the 41 Domain 1 criteria. Eleven criteria were observed only once or twice each: Criteria 3, 12, 13, 21, 32, 33, 34, and 41 (one observation) and Criteria 2, 17, and 30 (two observations). Nine criteria were observed six to nine times each: Criteria 6, 7, 15, and 24 (nine observations); Criterion 14 (eight observations); Criteria 18 and (seven observations); and Criteria 1 and 9 (six observations). The reliability of these 102 datamarks is undermined by major flaws in the iObservation® form and the analytical framework and Assistant Principal Farr and Principal Almanzar's incompetence, carelessness, and confirmation bias, all as detailed below. The distortions resulting from these deficiencies were amplified by the power of the iObservation® form in terms of its breadth and depth, so as to produce an unreliable IPS and, thus, Final Score. The following three sections discard and revise datamarks, so as to produce a minimally reliable IPS. Discarded and Revised Domain 1 Datamarks for Misapplication of Criteria Requirements With one exception,7 the criteria are the sole source of requirements imposed on a teacher by the iObservation® form. The items of Teacher Evidence are means by which a teacher may show that she is complying with a particular criterion. Confusion about the requirements of individual criteria arises from a lack of editorial consistency in stating the items of Teacher Evidence relative to their respective criteria. This inconsistency promotes user error in assessing the extent to which a teacher is implementing a criterion. For most criteria, the items of Teacher Evidence illustrate means by which a teacher may demonstrate compliance with the criterion to which the items relate. These items are typically characterized by language specifying activities or practices that exemplify means of demonstrating compliance with criteria, but do not themselves exceed the requirements of the criteria. For some criteria, the items of Teacher Evidence essentially restate the requirements of their criteria, typically in more general language that tracks the language of the criteria. These items operate as mandatory requirements, not illustrations. For some criteria, the items of Teacher Evidence purport to add new requirements by illustrating activities or practices that, in exceeding the requirements of their criteria, necessarily satisfy those requirements. For relatively few criteria, the items identify activities or practices that are completely irrelevant to their criteria, meaning that they are not even illustrative of means of satisfying their criteria. Further complicating matters, for some criteria, the items of Teacher Evidence combine more than one of these editorial approaches. The scope of this section of the recommended order is limited to discarding and revising datamarks for which the observer has revealed, by checking items of Teacher Evidence or by comments, a misunderstanding of the relationship of the items of Teacher Evidence to the criterion that the observer was assessing. Petitioner has trained its observers to check items of Teacher Evidence that are present during an observation of a particular criterion. Checking what is observed is intuitive to support relatively high datamarks for items of Teacher Evidence that are illustrative or mandatory. But checking what is missing is intuitive to support relatively low datamarks for items of Teacher Evidence that are mandatory. For some observers, checking what is missing may be intuitive to support relatively low datamarks for items of Teacher Evidence that purport to add requirements to their criteria. For particularly inattentive or inept observers, checking what is missing may be intuitive to support relatively low datamarks for items of Teacher Evidence that are clearly illustrative, even though the absence of an illustrative item logically does not preclude a relatively high datamark, if other evidence of compliance is present. In this case, checked items or comments reveal observer confusion in 30 datamarks covering 17 of the 25 Domain 1 criteria that were observed. The relationship of the items of Teacher Evidence to these 17 criteria is set forth in the following paragraphs. For Criterion 1, the five items divide into two sets, although the text does not so indicate. The first three items address a learning goal, and the last two items address a scale. The criterion requires a learning goal and a scale, so, if the items were purely illustrative, evidence of one item in the first set and one item in the second set would justify a higher datamark. But the correct use of these items of Teacher Evidence is complicated by their purported addition of requirements to Criterion 1. The first and fourth items require the posting of a learning goal and scale, respectively. Posting requires a writing, but Criterion 1 does not require that the learning goal or scale be written or posted. Posting a written learning goal or scale would be one way of meeting the criterion's requirement of providing a learning goal or scale, but the absence of a posting would not demonstrate noncompliance. The purported addition of "requirements" of a posted writing is harmless, as long as the observer understands that the criterion does not require a posted writing. The third and fifth items operate in the same fashion. These items purportedly require references to the learning goal and scale throughout the lesson. References throughout the lesson clearly would satisfy the requirement of providing the learning goal and scale, but references throughout the lesson exceed the requirements of the criterion, so such repeated references are not required. The first part of the second item also purports to add a requirement to Criterion 1. The first part of the second item requires that the learning goal is a clear statement of knowledge or information. The criterion requires only that the learning goal is clearly stated. A clear statement of knowledge or information as a learning goal is a clearly stated learning goal that exceeds the requirement of the criterion. Again, this purported addition is harmless, as long as the observer recognizes that the criterion does not require a clear statement of knowledge or information. The second part of the second item raises a different type of editorial treatment of an item of Teacher Evidence. Here, the item clearly prohibits something that is not prohibited by the criterion, so that noncompliance with the item is irrelevant. Leaving aside the issue of whether a learning goal could apply to an assignment, it could apply to an activity, such as learning how to conduct internet research, operate a scientific calculator, or utilize a usage manual. The potential for confusion is especially great when the iObservation® form cites an irrelevant item of Teacher Evidence, regardless of whether it is as a prohibition, as here, or, as is more common, as a requirement. For Criterion 2, the first two items of Teacher Evidence are general restatements tracking the requirements of the criterion. Because these items are not illustrative and no other means of satisfying the criterion appears to exist, the first two items are properly mandatory, not illustrative. However, the third item under Criterion 2, which is charting the progress of the entire class, is a means of tracking student progress and is thus merely illustrative. This editorial inconsistency requires the observer to understand that the presence of the first two items means a higher datamark, the absence of the first two items means a Not Using datamark, and the absence of either of the first two items means a lower datamark. The absence of the third item is irrelevant, but the significance of its presence depends on the status of the first two items. The editorial inconsistencies among the items of Teacher Evidence in Criterion 5 create similar confusion. The first item is illustrative, if the physical layout of a classroom can be organized to facilitate movement without featuring clear traffic patterns. If such a physical layout must feature clear traffic patterns, the first item is mandatory. The second item purports to add requirements by substituting access to "materials and centers" for the criterion's reference to facilitating "learning." Again, the organizing of a classroom to provide easy access to materials and centers illustrates one means of facilitating learning, but the absence of easy access to materials and centers would not justify a lower datamark. The third item is another example of an item's complete departure from the requirements of its criterion--this time in the form of an irrelevant requirement, rather than an irrelevant prohibition. The criterion covers only organizing. The third item covers decorating. Decorating8 is not organizing;9 these two activities have nothing to do with each other. The decorating of a classroom--here, with bulletin boards displaying student work--is not evidence of a criterion requiring organizing, so the presence or absence of decorations is irrelevant. For Criterion 6, the first item of Teacher Evidence is illustrative, but seems to add the requirement that the teacher identify the critical information at the start of the lesson. The criterion requires only that the teacher inform her students of critical information before presenting the information, so the first item illustrates one way of satisfying this criterion. The second item may be mandatory because it essentially restates the requirement of the criterion in general language, and the third item is illustrative. For Criterion 7, the second item is largely mandatory because it essentially restates the requirements of the criterion, ignoring its limitation of small groups to groups of "up to about" five students and ignoring its implied duration of small-group instruction for "the lesson," even though the criterion does not require the use of small-group instruction for the entire lesson. The first item adds an irrelevant requirement that the teacher establish routines for grouping. The criterion requires only that the teacher uses groups, not that she establishes routines for the use of groups, and the existence of established routines does not tend to prove her use of groups, only, perhaps, her readiness to use them. For Criterion 8, the eight items of Teacher Evidence are clearly illustrative. The specificity of the language of the items coupled with the obvious fact that these eight activities do not exhaust the collection of activities that could help students link what they know to new content would seem to preclude the misapplication of any of these items. For Criterion 9, the four items illustrate means by which a teacher may "chunk" her presentation into small parts; other means of doing so obviously exist. For Criterion 10, the two items, which are illustrative, purport to add a requirement of groups, but the criterion makes no mention of groups. For Criterion 14, the first item of Teacher Evidence requires that the teacher begin the lesson with a brief review. This item is illustrative, but seems to add a requirement because the criterion does not provide when during class the review must take place. The second item is illustrative. For Criterion 15, the two items of Teacher Evidence are mandatory requirements because they use general language to track the two components of the criterion: deepening knowledge and practicing skills. For Criterion 19, the lone item of Teacher Evidence seems to add new requirements to the criterion, which requires only that the teacher engage her students in practice activities to develop fluency whenever the content involves a skill, strategy, or process. The item adds that the practice activities must be massed and distributed--the criterion would allow any type of activity--and must be appropriate to the students' current abilities--the criterion does not address students' abilities. The failure to meet these requirements would thus signify nothing. For Criteria 18, 26, 28, 30, 32, and 33, the various items of Teacher Evidence are illustrative. From Assistant Principal Farr's checkmarks and comments, it is clear that he misapplied the requirements of various criteria in 22 of his 84 datamarks. There is sufficient information in his comments to revise 2 datamarks; the remaining datamarks must be discarded. Sometimes Assistant Principal Farr checked items that were absent, and sometimes he checked items that were present. He issued Not Using datamarks for criteria bearing checked items on November 5, November 20, January 17 and February 28, although, for the first three observations, he also issued Not Using datamarks for criteria bearing no checked items. It is reasonably clear that Assistant Principal Farr intended for these checkmarks to signify that items were absent. On November 20 and December 4, Assistant Principal Farr issued Developing datamarks, which were the highest datamarks that he issued in the first semester, for criteria with items that were checked. It is unclear whether Assistant Principal Farr was signaling why he issued a higher datamark or why he did not issue an even-higher datamark. To avoid an unreasonable likelihood of an unreliable observation, the Administrative Law Judge has discarded all of Assistant Principal Farr's datamarks of Not Using or Beginning through the February 28 observation that are accompanied by checked boxes, except for datamarks involving items of Teacher Evidence that essentially restate the mandatory requirements of their criteria. This results in the discarding of the following 15 datamarks: November 5--Criterion 18 (item is illustrative); November 20--Criterion 1 (item purports to add a requirement--a posted learning goal) and Criterion 30 (item is illustrative); December 2--Criterion 33 (item is illustrative); December 4-- Criterion 5 (item adds irrelevant requirement--decoration); Criterion 26 (item is illustrative); January 17--Criterion 6 (item is illustrative); Criterion 8 (item is illustrative); Criterion 9 (item is illustrative); Criterion 10 (item purports to add a requirement--groups); Criterion 19 (item purports to add a requirement--massed and distributed practice activities); Criterion 30 (item is illustrative); and Criterion 32 (item is illustrative); February 12--Criterion 18 (the absent item is illustrative); and February 28--Criterion 19 (item purports to add a requirement--massed and distributed practice activities). After February 28, Assistant Principal Farr no longer checked items of Teacher Evidence for which he assigned Not Using datamarks, and, where he did check items, he did so in connection with relatively high datamarks. The evidence is close, but it appears more likely than not that he changed his practice to conform to his training, rather than continued to check missing items to explain why he did not issue even-higher datamarks. Assistant Principal Farr entered only a few comments on his completed iObservation® forms. Some of them reinforce the misunderstandings noted above in connection with checked items, but others pertain to datamarks for criteria for which there are no checked items and reveal additional misunderstandings. Assistant Principal Farr's first comment reinforces the need to discard his already-discarded Not Using datamark in connection with Criterion 5 on the December 4 observation. The comment is that the "strategy is called for but not exhibited." As noted above, the item checked is the decoration of the classroom with bulletin boards displaying student work--a requirement that is not called for in the criterion. Assistant Principal Farr's only other comment on the December 4 iObservation® form confirms his Developing datamark for Criterion 28. Assistant Principal Farr's next comment is to Criterion 24 on the January 17 observation. He issued a Beginning datamark and checked the item requiring the teacher to notice when students are not engaged. This is an example of a mandatory item, so its checking would justify his low score. The comment asks how could Respondent scan the room to notice when students are not engaged and take action. Assistant Principal Farr then adds: "Tapping on the desk and telling students that they better get going or you would have to send them to someone else is not very encouraging." The datamark is justified because Respondent evidently did not notice that students were disengaged, but the last comment adds a requirement that Respondent's overt action be "encouraging," not tapping on the desk and telling them that Respondent might have to send them somewhere else like the office.10 Nothing in the language of this criterion supports Assistant Principal Farr's limitation of "overt action" to "overt encouraging action." He was simply not paying attention to what he was doing and either relied on his belief that Respondent generally was insufficiently positive with his students or vaguely recalled other Marzano criteria that require positive reinforcement. Another comment for this observation concerns Criterion 26, which is managing response rates. The comment is: "During the 30 minutes of my visit, only one of your 19 students participated in your lecture. How can you begin to incorporate this strategy into your instruction?" This comment justifies a lower datamark for Criterion 24, which requires the teacher to notice when students are disengaged and take overt action. But these generic comments do not justify a lower datamark for Criterion 26--specifically for failing to manage response rates. From the comment, there were no responses to manage. At least as likely, this lack of student engagement was due to a failure to use academic games (Criterion 25), use physical movement (Criterion 27), maintain a lively pace (Criterion 28), maintain intensity and enthusiasm (Criterion 29), use friendly controversy (Criterion 30), provide opportunities for students to talk about themselves (Criterion 31), present unusual or intriguing information (Criterion 32), or use some combination of these strategies. Assistant Principal Farr's selection of a criterion does not guarantee that it was "called for," as discussed in the next section. The same comment accompanies Assistant Principal Farr's Beginning datamarks for Criteria 28 and 32 and Not Using datamarks for Criteria 26 and 30. His datamarks for Criteria 30 and 32 have already been discarded. His datamarks for Criteria 26 and 28 must also be discarded to avoid an unreasonable likelihood of an unreliable evaluation. There were no responses to manage, and Assistant Principal Farr failed to supply any support for a finding that Respondent was failing to maintain a lively pace, which, as noted by the coaches, he tended to do. Assistant Principal Farr's next comment is for Criterion 14 on the February 12 observation. He assigned a Developing datamark for this criterion, which is for the teacher to engage the students in a brief review of critical information. The comment is: "In addition to engaging students in a brief review of content, how can you monitor the extent to which students can recall and describe previous content?" This comment acknowledges implementation of the activities, but without monitoring, so the datamark was properly Developing. Assistant Principal Farr's comment for Criterion 7 on the first February 18 observation, for which he assigned a Developing datamark, is: "Students were engage [sic] and really enjoyed this activity. However, students need to be taught how to work collaborate [sic] in their assigned roles so that they can get the most of the activity." Assistant Principal Farr's comment justifies the Developing datamark if Criterion 7 mandates the use of small-group instruction when presenting new information, even though the students were engaged and enjoying what was presumably direct instruction by lecture. For the reason explained in the next section, if a strategy could be used, it must be used for the duration of the activity to which it pertains. This comment, though, reveals that such an interpretation of "called for" may require the use of a Marzano-mandated strategy, such as small-group instruction, even though the students are engaged and enjoying the teacher's use of a Marzano-unapproved strategy, such as direct instruction, when presenting new information. Only 90 minutes later, Assistant Principal Farr returned to Respondent's class and reassessed Criterion 7. This time, he issued a Beginning datamark and commented: "Uses the strategy incorrectly or parts are missing. Students were told to ask the person next to them if they got stuck or ask the teacher. Putting students in groups would have been a more effective strategy." As noted above, one of the illustrative items for this criterion is organizing the students into small groups, such as "diads," which is a group of two persons.11 Telling students that they may confer with a neighbor is a form of grouping; the iObservation® form does not treat the moving of chairs as a condition precedent to grouping. The comment reveals that Respondent had grouped his students, so the Beginning datamark must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. Assistant Principal Farr's other datamark on this observation is also erroneous. He assigned a Not Using for Criterion 10, which is for the teacher, during breaks in the presentation of content, to "engage. . . students in actively processing new information." Assistant Principal Farr did not check either item of Teacher Evidence, but commented: "The activity called for grouping but it was not used. How can you begin to incorporate some aspect of this strategy in your instruction?" As discussed above, this criterion does not call for grouping. The items of Teacher Evidence purport to add grouping as a requirement, and this editorial inconsistency in illustrating evidence that exceeds the criterion's requirement has misled Assistant Principal Farr. The Not Using datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Assistant Principal Farr added a comment to his Not Using datamark for Criterion 19 on the February 28 observation. This datamark has already been discarded for the reasons noted above. But the comment reveals Assistant Principal Farr's haphazard approach to using the iObservation® form. For a criterion that requires the teacher to "engage. . . students in practice activities that help them develop fluency" when the "content involves a skill, strategy, or process," Assistant Principal Farr commented: "Teachers [sic] sitting at desk while students completes [sic] quiz. One student was had [sic] her head down while falling asleep. I asked her if she was not feeling well and she said that she was OK and started working again." The disengagement of a lone student from a practice activity does not merit a Not Using datamark for a criterion requiring a teacher to engage students in practice activities to develop fluency. The Not Using datamark must be discarded to an unreasonable likelihood of an unreliable evaluation. On his March 18 observation, Assistant Principal Farr issued a Not Using datamark for Criterion 2, which is tracking student progress. The comment, in part, is: "Students were not monitored to see where they were on the scale in relation to the learning goal." The only point at which a failure to monitor enters into this criterion is when issuing a Developing datamark. The Not Using datamark must be raised to Developing to avoid an unreasonable likelihood of an unreliable evaluation. On the same observation, Assistant Principal Farr's comment concerning Criterion 7 justifies his Not Using datamark for this small-group criterion. Likewise, his comments concerning Criteria 18 and 26 justify his Beginning datamarks for these criteria. On his April 11 observation, Assistant Principal Farr issued a Beginning datamark for Criterion 6, which is identifying critical information. His comment is: "Student was still confused after you gave the answer to a problem. How can you signal to student which content is critical versus non-critical?" For no apparent reason, Assistant Principal Farr has inferred that the student's confusion is due to Respondent's failure to signal what content is critical. From the comment, Assistant Principal Farr may have thought he was scoring Criterion 13, which is reflecting on learning. The Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Citing substantially the same comment about the student who remained confused after Respondent had solved a problem, Assistant Principal Farr on the April 11 observation issued another Beginning datamark for Criterion 14, which is reviewing content. This criterion requires only that a teacher engage her students in a brief review of content that highlights critical information. The comment does not suggest that Respondent was reviewing content when he answered a question posed by a student, who remained confused after hearing the answer. Again, the comment suggests that Assistant Principal Farr should have issued a datamark for Criterion 13. More interestingly, Assistant Principal Farr's assigning of two relatively low datamarks for the same "deficiency," even if the two criteria had applied, raises the issue of how observers choose which criteria to observe, which is discussed in the next section. Here, though, the Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. This analysis of Assistant Principal Farr's comments has resulted in the discarding of his datamarks for Criteria 26 and 28 on the January 17 observation, Criterion 10 on the second February 18 observation, and Criteria 6 and 14 on the April 11 observation, as well as raising two datamarks--the Beginning for Criterion 7 on the second February 18 observation to Applying and the Not Using for Criterion 2 on the March 18 observation to Developing. From Principal Almanzar's comments, it is clear that he misapplied the requirements of various criteria in 8 of his 14 datamarks. There is sufficient information in his comments to revise six datamarks; the remaining two datamarks must be discarded. On his April 3 observation, Principal Almanzar issued a Not Using datamark for Criterion 14, which is reviewing content. Although he did not check any items of Teacher Evidence, Principal Almanzar added extensive comments including that Respondent asked the students to review another teacher's presentation, which obviously encompasses the activity of reviewing. Several comments have absolutely nothing to do with this criterion. Additionally, Respondent added an extensive comment of his own to this observation, stating that he was reviewing critical information during the observation by collecting an IB practice exam question that reviewed material previously covered in the class. This Not Using datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. On his April 10 observation, Principal Almanzar issued a Developing datamark for Criterion 5, which is organizing the physical layout of the classroom. He checked the item involving classroom decorations, including bulletin boards featuring student work. Principal Almanzar's comment is: "The room is not rich in content, no student work, and no math posters on the wall." As discussed above, this item of Teacher Evidence is completely irrelevant to the criterion. The Developing datamark, which establishes implementation of other requirements of the criterion, must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. The same problem occurs with Principal Almanzar's Developing datamark for Criterion 6, which is identifying critical information. His comment is: "During several occasions the teacher stated to students 'you have to know this to pass the EOC.' However, at no time did the teacher say to students you need to know this 'specific information for the EOC.'" Principal Almanzar made a distinction without a difference, and, more importantly, he made a distinction that lacks relevance. Principal Almanzar checked the item that the teacher tells students to get ready for important information. The criterion does not require greater specificity than "a lesson or part of a lesson." Again, this Developing datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. The next item observed by Principal Almanzar on April 10 is Criterion 7, which is: "The teacher organizes students into small groups to facilitate the processing of new information." He checked the item that states: "Teacher has established routines for student grouping and student interaction in groups." Seizing on the absence of routines, Principal Almanzar's comment reveals his misunderstanding of the criterion: "Teacher gets students into groups, but does not establish rules for students to work together. Consequently, students work independently as they sit in a group formation." As noted above, the requirement of routines in the items of Teacher Evidence is not in the criterion. The Not Using datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. Selecting another small-group criterion, Principal Almanzar entered a Not Using datamark for Criterion 15, which is: "The teacher uses grouping in ways that facilitate practicing and deepening knowledge." He checked both items of Teacher Evidence, but his comment is: "Teacher organizes students to work together and assigns problems for students to solve. Students sit in groups, but the majority of students work independently." Here, Principal Almanzar seems to be adding a requirement to one of the small-group criteria. The Not Using datamark must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. On his May 8 observation, Principal Almanzar issued a Beginning datamark for Criterion 6, which is identifying critical information. He did not check any items of Teacher Evidence, but his comment is: "Teacher said to students 'what is the measure of an adjacent angle?' How can you signal to students which content is critical versus non-critical?" Principal Almanzar has never taught math and cannot establish that the measure of an adjacent angle is critical. Any implication that a teacher must affirmatively enumerate, as to every bit of information taught in class, whether it is critical or noncritical is rejected as impracticable. The Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. For Criterion 14, which is reviewing content, Principal Almanzar assigned a Beginning datamark, checked the item that illustrates several specific strategies that a teacher might use to review information, and added a comment: "Teacher did not ask students to relate previous knowledge to content being reviewed. How can you engage students in a brief review of content that highlights the critical information?" The question merely restates the criterion as a question. The statement completely misses the point of the criterion, which requires only that the teacher "engages students in a brief review of content that highlights the critical information." The statement bears a resemblance to Criterion 20, which requires the teacher to engage the students "in revision of previous knowledge about content addressed in previous lessons." Principal Almanzar's evident inattentiveness requires that the Beginning datamark be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Principal Almanzar's comments to Criteria 15, which is a small-group criterion, and 19, which is practicing skills, ask the same pleasantly encouraging question that, if machine- generated or -prompted, should remind the reader of the role of the iObservation® form as a professional-growth instrument: "How can you begin to incorporate some aspect of this strategy in your instruction?" But Respondent had already begin to use both strategies. In his April 10 observation, Principal Almanzar acknowledged that Respondent had used small-group instruction and had issued a Developing datamark for Criterion 19. And, if Respondent were to respond to the gentle prod of this question and "begin" to use these strategies, he needed a sense of urgency because, one week later, Principal Almanzar recommended to the Superintendent that Respondent be fired. Although these comments suggest carelessness on Principal Almanzar's part, they do not affirmatively discredit the datamarks assigned to Criteria 15 and 19. However, Principal Almanzar's comment for Criterion 19 adds: "Students were not grasping teacher's explanations." This criterion requires the teacher to "engage. . . students in practice activities that help them develop fluency." The comment implies that Respondent was doing that, but, at worst, was failing to monitor a majority of the students for the desired effect of this strategy. Principal Almanzar's Not Using datamark for Criterion 19 must be increased to Developing to avoid an unreasonable likelihood of an unreliable evaluation. This analysis of Principal Almanzar's comments has resulted in the discarding of his datamarks for Criteria 6 and 14 on the May 8 observation, as well as the revision of six datamarks: on the April 3 observation, the datamark for Criterion 14 has been increased from Not Using to Applying; on the April 10 observation, the datamarks for Criteria 7 and 15 have been increased from Not Using to Applying and the datamarks for Criteria 5 and 6 have been increased from Developing to Applying; and, on the May 8 observation, the datamark for Criterion 19 has been increased from Not Using to Developing. Discarded Domain 1 Datamarks for Disproportionate Observation of Small-Group Criteria An observer may assign a datamark only for a strategy that is "called for." If, under the circumstances, a strategy is not "called for," the observer must choose another strategy for assessment. The iObservation® form fails to define "called for," but permissible meanings of "called for" are that a strategy must or could have been used.12 An observer who reserves datamarks for strategies that must be used will have fewer opportunities to issue datamarks than an observer who issues datamarks for strategies that could be used. A strategy, such as small-group instruction when presenting new information, could be used more often and for longer duration than it must be used. Nothing in the iObservation® form indirectly supports either definition of "called for." But the MOU's statement that the Marzano criteria are mandatory and have displaced teacher judgment militates in favor of the definition that gives the Marzano criteria their widest reach. For this reason, "called for" means any strategy that could be used, meaning that observers have greater latitude in assigning Not Using datamarks. Observers have even greater latitude in another respect: the selection of criteria to observe. Neither the iObservation® form nor the MOU limits the discretion of an observer in selecting criteria for observation. When the iObservation® form is used to promote professional growth, homing in on a teacher's weaknesses may be a useful practice, but when the form is used to evaluate a teacher, the same practice presents a unbalanced portrait of the teacher by over-emphasizing her weaknesses. Combined with the vagueness of "called for," the unfettered discretion to select criteria for observation confers upon observers a unique power to shape observations and, thus, evaluations. The observer who fully exploits the latitude extended to him by these two omissions will generate observations that tell the reader increasingly less about the teacher and increasingly more about the observer, as he assumes the role of the "I" in "iObservation."® The iObservation® form and MOU support one limitation on the observer's selection of criteria for assessment. Because Dr. Marzano, Petitioner, and BTU have not weighted individual criteria in these documents, observers cannot assume this authority by disproportionately assessing certain criteria. Due to the large number of criteria relative to the number of datamarks that a teacher receives during a school year, it is impossible to require proportional observation on a per-criterion basis. This would unduly restrict the flexibility of observers, who, for instance, could not observe the same criterion a second time in a school year to see if the teacher had corrected a deficiency noted in the implementation of that strategy earlier in the school year.13 The limitation imposed on observers is on the cumulative over-representation14 of groups of related criteria. For present purposes, there is no need to discard datamarks of criteria that are within groups that are over-represented in observations unless the over-representation is material. Materiality is a function of the relationship of the over-represented datamarks to the remaining datamarks in terms of point values. Given the issues framed by a case of this type, the issue is whether observers have assigned relatively low datamarks to the criteria that are within groups that they have over-represented in their observations. Broadly speaking, the prominent groups of Domain 1 criteria are Criteria 6-13--presenting new information; Criteria 14-20--reviewing information; Criteria 24-32-- maintaining student engagement; and Criteria 4 and 33-39-- maintaining positive teacher-student relations. In this case, the third group of criteria was observed proportionately, but the first two groups were over-observed, and the fourth group was greatly under-observed.15 But the over-representation of datamarks for the first two groups has proved immaterial. After reviewing the scores and, where the record fails to support the lower scores, increasing them, the datamarks are not so low as to distort the overall evaluation process. The under-representation of datamarks for the fourth group has proved irrelevant.16 The same is not true for one group of three criteria: the small-group criteria, which are Criteria 7, 15, and 21.17 AHS administrators over-represented these criteria in their observations and assigned very low datamarks to these criteria. With few exceptions, the datamarks for these criteria are supported by the record,18 which is why a limitation on the observer's selection of these criteria is important to assuring a reasonable likelihood of a reliable evaluation. Criteria 7, 15, and 21, require small groups, respectively, when presenting new knowledge, practicing or deepening knowledge, and helping students who are working on complex tasks that require them to generate and test hypotheses.19 Respondent testified that he engaged in small-group instruction once every three weeks. Mr. O'Brien testified that Respondent grouped students on Thursdays. But, even if Respondent increased his use of small-group instruction in response to the repeated urgings of Ms. Spadaro and Ms. Kal Sander, nothing in the record suggests that he engaged in small-group instruction much of the time during the 2013-14 school year. In turn, AHS administrators assessed the small-group criteria greatly in excess of their representation in the iObservation® form. The three small-group criteria constitute only about 7% of the 41 criteria, but they generate almost 19% of the datamarks--19 of 102 datamarks. The over-observation of the small-group criteria was material. These three criteria generate almost 45% of the Not Using datamarks--17 of 38 datamarks. For this reason, the small-group criteria generated very low scores: nine datamarks of Criterion 7 averaged 1.278 points, nine datamarks for Criterion 15 averaged 1.0 point, and one datamark for Criterion 21 was 1.0 point. Due largely to the analytical framework provided by the MOU, the effect of Not Using datamarks is dramatic on a teacher's Final Score. To earn the minimum Effective rating of 2.5 points, without any Innovating ratings, a teacher must obtain three Applying datamarks for every Not Using datamark to reach the threshold of Effective. A teacher receives a minimum of 25-35 datamarks over the course of a school year. Assuming 30 datamarks without any Innovating datamarks, once a teacher receives eight Not Using datamarks, she cannot earn an Effective score. Here, with 102 datamarks, if none is Innovating, a teacher with more than 25 Not Using datamarks cannot attain an average of 2.5 points. The requirement of proportionality is an imperfect device,20 but provides some limit on an administrator's ability to distort the evaluation process by ducking into a teacher's classroom to confirm that she still is not using certain strategies and quickly accumulating numerous Not Using datamarks. To some extent, Assistant Principal Farr did just this regarding the three small-group criteria. On February 18, 2014, he conducted two snapshot observations for Criterion 7 only 90 minutes apart, scoring during these observations only one other criterion, Criterion 10, which he erroneously believed also was a small-group criterion.21 More generally, although less dramatically, the same thing happened repeatedly with respect to the small-group criteria. AHS administrators conducted nine snapshot observations and two informal observations involving no more than two criteria, so as, in this respect, to resemble snapshot observations. During these 11 focused observations, the administrators issued 26 datamarks, of which 14 were Not Using datamarks. Focused observations thus accounted for about 22% of the total datamarks, but about 37% of the Not Using datamarks. For the three small-group criteria--again, representing about 7% of the total criteria--the AHS administrators conducting focused observations issued 7 datamarks, or about 27% of the datamarks that they issued in focused observations and half of the Not Using datamarks that they issued in focused observations. AHS administrators observed one or more of these small-group criteria in six of the 11 focused observations. Prior to the discards and revisions set forth in the preceding section,22 as noted above, the three small-group criteria accounted for 19 of the 102 datamarks, or nearly 19%. If the AHS administrators had limited their observations of these three small-group criteria to their proportional share of the 41 Domain 1 criteria, they would have generated no more than about eight datamarks for these three criteria, instead of 19. An approximate proportionality will suffice, so ten of the Not Using datamarks for Criteria 7 and 15 must be discarded to provide a reasonable likelihood of a reliable evaluation. Revised Domain 1 Datamarks for Failure to Prove Datamarks by Greater Weight of the Evidence Petitioner must prove by a preponderance of the evidence that Assistant Principal Farr or Principal Almanzar saw or did not see activities to support the datamarks on their iObservation® forms. Notwithstanding the language of the MOU promising a more comprehensive process for the evaluation of a teacher,23 at present, the Final Score is the sole determinant of the employment decision, so the burden placed on Petitioner is merely to prove that the observers saw and did not see what they reported directly in their comments or checked items of Teacher Evidence or implicitly based on the datamarks. Petitioner's task is further eased by the fact that, except for Respondent, the other sources of opposing evidence--Respondent's coaches and teaching colleagues--were rarely, if ever, in the classroom during the observations, which were not recorded for review by third parties. The evidentiary bar thus is not exceptionally high, but even a low bar must be cleared. For the datamarks revised in this section, Petitioner's proof is insufficient to overcome the opposing evidence largely due to the impression left with the Administrative Law Judge that the observations conducted by Assistant Principal Farr and Principal Almanzar were tainted by incompetence, carelessness, and confirmation bias. It would seem that ineptitude in using the iObservation form could not impede an administrator's observing accurately what a teacher is doing and not doing during an observation. However, due to its breadth and depth, the iObservation® form imposes considerable burdens upon an observer. The record does not reveal any protocol used by Assistant Principal Farr or Principal Almanzar when observing Respondent. It is thus unclear whether the administrator first selected a criterion and then observed a class to see if the criterion was "called for," or if the administrator first observed a class to determine the activity, such as introducing or reviewing information, and then selected a criterion for observation. Clearly, some criteria, such as Criterion 24, which is noticing when students are not engaged and taking overt action, would spontaneously emerge as "called for," so that they would less likely be preselected for assessment. An observer needs considerable familiarity with the iObservation® criteria to conduct an efficient, accurate observation. A teacher might be chunking content under Criterion 9 and managing response rates under Criterion 26 when students suddenly disengage, requiring her to take other overt action, under Criterion 24, which could entail academic games or physical movement under Criteria 25 and 27, respectively--all within one or two minutes. Even in a less dynamic interval, a teacher might be identifying critical information under Criterion 6, previewing new content under Criterion 8, chunking content under Criterion 9, engaging the students in processing information under Criterion 10, and engaging students requiring elaborative inferences under Criterion 11--all within a span of several minutes.24 In varying sequences, an observer must select one or more criteria to assess; if he is not sufficiently familiar with the iObservation® form, review the requirements of the criterion or criteria; observe what the class is doing at the moment and, in some cases, place this moment in the context of what presumably has already taken place, possibly before the start of the observation; observe what the teacher is doing and not doing; observe the students' responses; analyze the teacher's acts and omissions in the context of all 41 Domain 1 criteria; and document his findings in the form of one or more datamarks, possibly one or more comments, and possibly one or more checked items of Teacher Evidence, while, for Assistant Principal Farr, trying to keep straight if checks signify the presence or absence of an activity. These hypotheticals suggest the range of tasks that an observer must perform, but do not so much suggest the span of time in which he must perform these tasks. In three of the four formal observations conducted by Assistant Principal Farr, he assigned 49 datamarks--slightly over the upper range of 45 datamarks for three formal observations. In one comment, noted above, Assistant Principal Farr mentioned 30 minutes as the duration of one of these formal evaluations. If the other two formal observations were of the same duration, this means that he was assigning a datamark every two minutes, which would have necessitated that Assistant Principal Farr maintain a lively pace while entering nearly half of the datamarks that Respondent received for 2013-14. This also would have necessitated that Assistant Principal Farr have much greater dexterity in using the iObservation® form than he has demonstrated in this case. The odds of missing elements of what the teacher was doing are fairly high. The lack of skill in using the iObservation® form demonstrated by Assistant Principal Farr and Principal Almanzar--but especially Assistant Principal Farr, given the time pressures to which he subjected himself in three formal observations--thus reduces the weight to be assigned to their datamarks as descriptions of what they saw or did not see. There is also ample evidence of carelessness by both administrators in discharging their duties in this case, as detailed above. Inattention to the details of the iObservation® form suggests inattention to the situations confronting a teacher in the classroom, the strategies that she employs in response to those situations, and the effect of these strategies on her students. Respondent argues for an inference of bias in the form of a conspiracy between Assistant Principal Farr and Principal Almanzar, if not others, to gain the dismissal of Respondent. The evidence offers little support for Respondent's conspiracy template. Among other things, schemers presumably would have paid more attention to the details of their conspiracy. However, it is impossible also to rule out confirmation bias25 on the part of Assistant Principal Farr and Principal Almanzar. An occasional misreading of the confusing items of Teacher Evidence signifies nothing, but one-quarter of Assistant Principal Farr's datamarks and over half of Principal Almanzar's datamarks were bed on their misreading of the requirements of the criteria that they were assessing. This record signifies incompetence, carelessness ripening into recklessness, and possibly confirmation bias. Neither incompetence nor inattentiveness would seem to have been involved in Assistant Principal Farr's failure to give effect to the MOU requirement that he make "every effort" to allow for a reasonable amount of time for growth between observations. Even if he were ignorant of this provision of the MOU, Assistant Principal Farr should have been guided by basic notions of fair play, but was not. Instead, Assistant Principal Farr conducted three observations totaling 30 datamarks, or about 29% of all of the datamarks for the school year, in a span of seven school days--November 20, December 2, and December 4--averaging, respectively, 1.917, 1.0, and 2.278 points.26 And, as noted above, on one day, he conducted focused observations of small-group criteria 90 minutes apart. Principal Almanzar's failure to align the Marzano-based deficiencies in the PDP with a Marzano-based level of implementation, rather than "mastery," is easily explained by inattentiveness and unfamiliarity with the iObservation® form. But his failure to inform timely the coaches of Respondent's specific deficiencies suggests that Principal Almanzar may have been going through the motions of complying with a procedural requirement, not providing Respondent with targeted assistance. Assistant Principal Farr and Principal Almanzar also distorted the observation data and, thus, the evaluation process by disproportionately assessing the small-group criteria, often in focused observations. They knew that these observations would produce a large number of Not Using datamarks, which would produce a low IPS and Final Score. Respondent posed two main problems to his administrators: primarily, lots of poor grades and, secondarily, lots of disciplinary referrals. Each of these practices presumably generated lots of complaints, which meant considerable demands on the administrators' time. Respondent appears to lack the skills or inclination to work on his relationship with his superiors. At the same time, Petitioner adopted the Marzano mandates for teaching and Marzano method for evaluating teachers. It is unclear whether the two AHS administrators appreciated the depth and breadth of the iObservation® form, but they likely understood, as noted in the MOU, that Marzano mandates had displaced a considerable amount of teacher judgment in terms of teaching methods. Responsible for conducting the observations of Respondent,27 Assistant Principal Farr and Principal Almanzar could have approached their task with one of three mindsets. They could have been predisposed to share Respondent's opinion that the poor grades and disciplinary referrals were due to a lack of student motivation and, for more advanced classes, their failure to assign students properly. This possibility can be dismissed. Assistant Principal Farr and Principal Almanzar could have been predisposed to think that the poor grades and disciplinary referrals were due to Respondent's poor teaching practices. If so, the new Marzano-based evaluation process presented a good opportunity to document Respondent's deficiencies. Or Assistant Principal Farr and Principal Almanzar could have had no predispositions as to the cause of the poor grades and disciplinary referrals and seen the new Marzano-based evaluation process as a good opportunity to assess Respondent's teaching performance. Between them, Assistant Principal Farr and Principal Almanzar entered 98 datamarks. Of these, 30 datamarks were erroneous to the detriment of Respondent and 10 Not Using datamarks were discarded due to material disproportionality to his disadvantage. Of the remaining 62 datamarks, not a single one is erroneous to the benefit of Respondent, nor are there any datamarks that are materially disproportionate to his advantage. The impression that these administrators have left is that their uneven performance in this case is due, not merely to carelessness or ineptitude, but also confirmation bias, as each administrator tended to see and not see evidence that confirmed his knowledge that Respondent was a bad teacher. Thus, for the datamarks discussed below, the weight to be assigned to the direct or indirect reports of Assistant Principal Farr and Principal Almanzar of what they saw or did not see is insufficient to satisfy Petitioner's burden. Where datamarks, including some that have been discarded above, are increased to Applying or, for one criterion, Innovating, the required element of student monitoring is inferred from Respondent's recent record of student academic achievement and other sources. Although Assistant Principal Farr missed one instance of small-group instruction, as mentioned above, Petitioner generally proved that small-group instruction was not present when the observers issued Not Using datamarks for the three small-group criteria. To sustain these datamarks, the class must have been engaged in one of the three activities that triggers small-group instruction. It is fairly easy to notice when a class is interacting with new knowledge or practicing knowledge. On the other hand, nothing in the record persuades the Administrative Law Judge that Assistant Principal Farr is capable of recognizing or, if capable, bothered to recognize when math students were working on complex tasks that required them to generate and test hypotheses. His Not Using datamark for Criterion 21 on the January 17 observation is thus discarded to avoid the unreasonable likelihood of an unreliable evaluation. On December 2, Assistant Principal Farr assigned a Not Using datamark for Criterion 33, which is demonstrating "withitness." Ms. Kal Sander's email of January 29, 2013, and Ms. Spadaro's email of April 26, 2013, both commend Respondent for his "withitness." Although Assistant Principal Farr's Not Using datamark for this criterion has already been discarded, it must be replaced with an Applying datamark to avoid the unreasonable likelihood of an unreliable evaluation. Respondent testified that he has long "chunked" his material to facilitate his students' learning, as required by Criterion 9. Ms. Kal Sander noted this in her email of February 14, 2013. The items of Teacher Evidence exclusively concern chunking the presentation, but the criterion does not preclude chunking the content. Based on his knowledge of the content of standardized tests and considerable experience teaching math, Respondent has done just that. His average score on six datamarks, as originally issued by the AHS administrators, was 2.417, so they had recognized his relative strength using this strategy. When compared to the strategies set forth in the items of Teacher Evidence, Respondent's "chunking" appears to be a new way of conforming to this criterion, thus entitling him to Innovating datamarks. The Developing datamark of April 10 has already been sustained. But the five remaining original datamarks, including the Beginning datamark on January 17 that has already been discarded, must be raised to Innovating datamarks to avoid the unreasonable likelihood of an unreliable evaluation. As explained by Respondent and corroborated by Ms. Spadaro's emails of February 20 and April 16, 2013, a core practice of Respondent is reviewing content, which is Criterion 14, but his average score for eight datamarks for this criterion is only 2.188. Principal Almanzar's Not Using datamark for Criterion 14 on April 3 has already been raised to Applying. Assistant Principal Farr's Developing datamark on February 12 has already been sustained. The remaining six datamarks, including those previously discarded, must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. Respondent's teaching practices have long included tracking student progress, which is Criterion 2, even to the point of hectoring his students about their lack of progress. As explained by Respondent and corroborated by Ms. Spadaro's emails of February 15 and March 21, 2013, Respondent also adopted her suggestion of the four-finger method of tracking student understanding. Respondent's two Not Using datamarks for Criterion 2 on observations dated March 18 and May 2--the former of which was already raised to a Developing--must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As explained by Respondent and corroborated by Ms. Kal Sander's email of February 14, 2013, Respondent has long provided clear learning goals and scales, which is Criterion 1, as part of his careful preparation of students for standardized testing. The poor alignment of all five items of Teacher Evidence to Criterion 1, as discussed above, invites erroneous scoring of this criterion. The six datamarks originally assigned for Criterion 1, including the Not Using datamark of November 20, must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. For largely the same reasons, the seven datamarks originally assigned for Criterion 6, which is identifying critical information, must also be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. This excludes the datamark of Applying on May 2 and the datamark of Developing on April 10 that was already raised to Applying, but includes the datamarks of January 17, April 11, and May 8 that were previously discarded. Considerable evidence establishes that Respondent maintains a lively pace in class, which is Criterion 28, sometimes perhaps at the cost of not leaving enough time to ensure that his students are always keeping up with him. The Developing datamark on December 4 has been sustained, but the remaining three of four original datamarks, including the Beginning datamark on January 17 that has already been discarded, must be increased to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As set forth in this section, 30 datamarks have been revised and one has been discarded. Nineteen of these revisions and the lone discard are to datamarks not previously discarded or revised in the preceding two sections; the remaining revisions are to datamarks that were previously discarded to revised in the preceding two sections. Conclusion as to Domain 1 Datamarks The net result of the discards and revisions detailed in the preceding three sections is the discard or increase of 61 datamarks. As discarded and revised, the remaining datamarks are set forth in Appendix B. As reflected on Appendix B, Respondent's average IPS is 2.532, which is the lowest score that avoids the unreasonable likelihood of an unreliable evaluation. iObservation® Form: Domains 2-4 Domains 2-4 Criteria The iObservation® criteria for Domains 2 through 4 that were assessed are set forth below. 42. Effective Scaffolding of Information within Lessons Within lessons, the teacher prepares and plans the organization of content in such a way that each new piece of information builds on the previous piece. Planning Evidence Content is organized to build upon previous information Presentation of content is logical and progresses from simple to complex Where appropriate, presentation of content is integrated with other content areas, other lessons and/or units The plan anticipates potential confusions that students may experience Teacher Evidence When asked, the teacher can describe the rationale for how the content is organized When asked, the teacher can describe the rationale for the sequence of instruction When asked, the teacher can describe how content is related to previous lessons, units or other content When asked, the teacher can describe possible confusions that may impact the lesson or unit. 44. Attention to Established Content Standards The teacher ensures that lesson and unit plans are aligned with established content standards identified by the district and the manner in which that content should be sequenced. Planning Evidence Lesson and unit plans include important content identified by the district (scope) Lesson and unit plans include the appropriate manner in which materials should be taught (sequence) as identified by the district Teacher Evidence When asked, the teacher can identify or reference the important content (scope) identified by the district When asked, the teacher can describe the sequence of the content to be taught as identified by the district 55. Promoting Positive Interactions with Colleagues The teacher interacts with other teachers in a positive manner to promote and support student learning. Teacher Evidence The teacher works cooperatively with appropriate school personnel to address issues that impact student learning The teacher establishes working relationships that demonstrate integrity, confidentiality, respect, flexibility, fairness and trust The teacher accesses available expertise and resources to support students' learning needs When asked, the teacher can describe situations in which he or she interacts positively with colleagues to promote and support student learning When asked, the teacher can describe situations in which he or she helped extinguish negative conversations about other teachers Seeking Mentorship for Areas of Need or Interest The teacher seeks help and input from colleagues regarding specific classroom strategies and behaviors. Teacher Evidence The teacher keeps track of specific situations in which he or she has sought mentorship from others The teacher actively seeks help and input in Professional Learning Community meetings The teacher actively seeks help and input from appropriate school personnel to address issues that impact instruction When asked, the teacher can describe how he or she seeks input from colleagues regarding issues that impact instruction Mentoring Other Teachers and Sharing Ideas and Strategies The teacher provides other teachers with help and input regarding specific classroom strategies and behaviors. Teacher Evidence The teacher keeps track of specific situations during which he or she mentored other teachers The teacher contributes and shares expertise and new ideas with colleagues to enhance student learning in formal and informal ways The teacher serves as an appropriate role model (mentor, coach, presenter, researcher) regarding specific classroom strategies and behaviors When asked, the teacher can describe specific situations in which he or she has mentored colleagues Adhering to District and School Rules and Procedures The teacher is aware of the district's and school's rules and procedures and adheres to them. Teacher Evidence The teacher performs assigned duties The teacher follows policies, regulations and procedures The teacher maintains accurate records (student progress, completion of assignments, non-instructional records) The teacher fulfills responsibilities in a timely manner The teacher understands legal issues related to students and families The teacher demonstrates personal integrity The teacher keeps track of specific situations in which he or she adheres to rules and procedures Participating in District and School Initiatives The teacher is aware of the district's and school's initiatives and participates in them in accordance with his or her talents and availability. Teacher Evidence The teacher participates in school activities and events as appropriate to support students and families The teacher serves on school and district committees The teacher participates in staff development opportunities The teacher works to achieve school and district improvement goals The teacher keeps track of specific situations in which he or she has participated in school or district initiatives When asked, the teacher can describe or show evidence of his/her participation in district and school initiatives Domains 2-4 Datamarks The definitions of the Developing and Applying datamarks for Domains 2 through 4 are different for each criterion and are provided as needed below. The remaining definitions are: Not Using: The teacher makes no attempt to perform this activity Beginning: The teacher attempts to perform this activity but does not actually complete or follow through with these attempts Innovating: The teacher is a recognized leader in helping others with this activity The criteria within Domains 2 through 4 are unlike Domain 1 criteria because they span an extended period of time--here, nearly the entire school year--rather than the period of an observation. Most, if not all, of the items of Teacher Evidence for criteria in Domains 2 through 4 contemplate an exchange between the teacher and the administrator to inform the administrator's datamark for these criteria. Criteria 42 and 44 also contemplate that the administrator will examine the teacher's planning materials to inform his datamarks for these criteria. Assistant Principal Farr issued all of the datamarks for the criteria within Domains 2 through 4. There is no evidence of any exchange of information or examination of planning materials. Instead, Assistant Principal Farr apparently drew upon his general knowledge of Respondent when entering these datamarks in a span of six school days about six weeks before the end of the school year. The failure to inform these determinations in the manner provided by the iObservation® form undermines the reliability of all of the datamarks for these criteria. There is also apparent inconsistency among certain datamarks. On April 29, Assistant Principal Farr issued Developing datamarks for Criteria 58 and 60 without comments and without checking any of the items of Teacher Evidence. The next day, Assistant Principal Farr issued datamarks of Not Using for Criterion 58 and Beginning for Criterion 60. Although he did not check any items, Assistant Principal Farr added comments. The comment for Criterion 58 is: "Does not contributes [sic] to new ideas to enhance student learning in formal or informal ways." The comment for Criterion 60 is: "The teacher attempts to perform activity but does not actually complete or follow through with these attempts; shows up to meetings (PLC) but does not contribute." Given that the second set of datamarks cover the same span covered by the first set of the datamarks, plus one day, these four datamarks collectively make no sense, so all four datamarks are discarded to avoid an unreasonable likelihood of an unreliable evaluation. On April 30, Assistant Principal Farr also issued Not Using datamarks for Criteria 55 and 59 and Beginning for Criterion 57. The comment for Criterion 55 is: "Comments during meetings are not negative [sic] and does [sic] not contribute to teaching and learning." The items of Teacher Evidence for this criterion require an analysis of indicators of the extent to which a teacher interacts with other teachers to promote learning. This was not done. If Respondent's negative comments were directed toward another teacher, as Assistant Principal Farr implies, but does not state, such comments would not necessarily preclude a higher datamark without consideration of Respondent's other relevant activities. Most likely, this datamark reflects Assistant Principal Farr's opinion of Respondent's behavior at a recent teacher meeting, nothing more, so it must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. The comment for Criterion 57 is: "Does not seek out help from academic coaches from [AHS] and does not show appreciation for their efforts and assistance." Gratitude is not an element of this criterion, nor is it mentioned in the items of Teacher Evidence, but it signals that Assistant Principal Farr has based a lower datamark on Respondent's lack of appreciation for the efforts of Ms. Spadaro, Ms. Kal Sander, and Mr. O'Brien. Assistant Principal Farr has selected a criterion that he should not have selected. Respondent's time has been filled with assistance from coaches. Under the circumstances, his failure to request more assistance is justified and renders this criterion unsuitable for assessment. For the reasons set forth in the preceding two paragraphs, the Beginning datamark for Criterion 57 must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. The comment for Criterion 59 is: "Does not fulfill responsibilities in a timely manner with regards to emails from administrator." Again, Assistant Principal Farr appears to have reduced this criterion to one failing--possibly, a lone instance of a failure of Respondent to reply, or to reply timely, to an email, probably from Assistant Principal Farr or Principal Almanzar. The Not Using datamark for Criterion 59 must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. Seven minutes after entering the Not Using datamark for Criterion 59, Assistant Principal Farr himself seems to have discarded this datamark when he issued an Applying datamark for Criterion 59. Assistant Principal Farr checked two items of Teacher Evidence: performing assigned duties and fulfilling responsibilities in a timely manner. Given the high datamark, Assistant Principal Farr's checkmarks indicate that these items were present. Assistant Principal Farr added a one-word comment, "voting." Of course, Respondent does not challenge this datamark, so an exegesis of this cryptic comment is fortunately not called for, as in required. On May 7, Assistant Principal Farr issued Not Using datamarks for Criteria 42 and 44. He added no comments to these datamarks. The six items of Teacher Evidence for these criteria all bear the same preface: "When asked." The six items of Planning Evidence for these criteria require Assistant Principal Farr to examine Respondent's planning materials, which he did not do. Assistant Principal Farr checked none of these items. For these omissions alone, Assistant Principal Farr's datamarks may be discarded. However, there is ample evidence that Respondent earned Applying datamarks for Criteria 42 and 44. As for Criterion 42, Respondent consistently scaffolded information within lessons. As a subject, math requires scaffolding, both within an individual lesson and over longer periods of time. For Criterion 42, Applying requires: "Within lessons the teacher organizes content in such a way that each new piece of information clearly builds on the previous piece." In light of Respondent's recent history of positive student achievement, Assistant Principal Farr's saying that Respondent does not scaffold information does not make it so. The Not Using datamark for Criterion 42 is raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. Respondent consistently ensured that his lesson and unit plans were aligned with established content standards and sequencing guidelines or requirements. For Criterion 44, Applying requires: "The teacher ensures that lessons and units include the important content identified by the district and the manner in which that content should be sequenced." The Not Using datamark for Criterion 44 is raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As revised, Respondent's three datamarks of Applying generate an average of 3.0 for Domains 2 through 4. 3. Application of Analytical Framework to Remaining, Revised Datamarks for Domains 1-4 Criteria The MOU calculates a teacher's Final Score based on her IPS, SDS, and DPS (if not treated as part of the IPS) with respective weights of 49%, 50%, and 1%. As noted above, Respondent received a 3.0 for his SDS and a 3.0 for his DPS, so the remaining task is to calculate his IPS and combine the three weighted scores for a Final Score. The Domain 1 score of 2.532 is weighted at 68% and the Domains 2-4 score of 3.0 is weighted at 32%. The result is 2.68 for Respondent's IPS. Combining the IPS, SDS, and DPS results in a Final Score of 2.84. Petitioner has thus failed to prove any performance deficiency for the 2013-14 school year. Count 3: Inefficiency or Incapacity Petitioner has failed to prove inefficiency or incapacity. The above-described analysis of his teaching performance establishes that the was Effective during the 2013-14 school year. Counts 1 and 2: Failure to Protect from Conditions Harmful to Learning and Not Engaging in Harassment or Discriminatory Conduct that Unreasonably Interferes with an Individual's Duties or Orderly Process of Education or Creates an Intimidating or Offensive Environment and Engaging in Behavior that Disrupts Student's Learning Environment or Colleague's Ability to Perform Duties Judging from Petitioner's proposed recommended order, Count 1 was intended to encompass a wide range of incidents, all minor in nature. Petitioner claims that Respondent lied about comments favorable to him made by one or more of his coaches. None of the comments warrants individual discussion; none was particularly important. The Administrative Law Judge has not determined whether these statements by Respondent were true or not because they are subordinate to the many issues present in this case. Some of these statements involve his claims that AHS administrators were biased against him. Given the combined possibilities that Respondent was telling the truth when making these statements, at least as to confirmation bias, or that Respondent believed he is telling the truth when making these statements, Petitioner has failed to prove that he has lied about his colleagues. Undoubtedly, Respondent had some unpleasant exchanges with AHS administrators. However, in the only such incident described in any detail, Respondent displayed restraint during the March 2013 encounter in which he overheard Ms. Kal Sander's frustrated dismissal of him. In that encounter, Respondent's characterization of Ms. Kal Sander's modeling was probably brusque, but appropriate, and part of a frank exchange between two professionals. Ms. Kal Sander over-reacted. Mr. O'Brien cited a lack of courtesy by Respondent. Mr. O'Brien's poor credibility as a witness disqualifies him as an arbiter of acceptable behavior, but even his account of this encounter does not justify a characterization of Respondent's behavior as harassment, discriminatory, intimidating, oppressive, or otherwise capable of reducing his colleagues' ability to perform their duties. More generally, the evidence as to all other matters does not rise to these levels. The most serious incidents encompassed by Count 1 are the occasional statements of Respondent to his class criticizing the administration or coaches. As to this matter, Mr. O'Brien's testimony has been rejected. On two occasions, Respondent made such comments about each of the two coaches, but did not make further such comments after being admonished by each coach. Petitioner's evidence concerning comments about AHS administrators falls short in two respects. First, it fails to establish the number of times that Respondent made such comments in front of his students or any such incident involving extended comments. Second, Petitioner produced no evidence of any student for whom these incidents were harmful to learning, disruptive to his learning environment, or harmful to the student's mental health. Significantly, the students were all high-school age, and the Administrative Law Judge finds an inadequate basis in the record to infer such harm or disruption. Just so it is clear to Respondent, this proof fails, not because such comments are acceptable when the students are high-school age, but for all of the reasons set forth immediately above. Counts 5-7: Failing to Work Diligently, Perform Prescribed Duties, and Comply with other Applicable Statutes, Rules, and Policies Petitioner has failed to prove that Respondent has failed to work diligently and faithfully help his students meet or exceed their annual learning goals or to perform any prescribed duties, or that he otherwise violated any provisions of law.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint and reinstating Respondent with his back salary. DONE AND ENTERED this 19th day of August, 2015, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2015.
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
Findings Of Fact Respondent began working for Petitioner School Board in 1960 as a teacher and has been so employed for approximately twenty years, with several breaks in service. At all times material hereto, Respondent has held Florida Teacher's Certificate No. 112370, Rank 1, covering the areas of elementary education, social studies, and junior college. During the 1981-82 and 1982-83 school years, Respondent worked as a social studies teacher at Cutler Ridge Junior High School. Prior to the 1981-82 school year, Respondent served as a CSI instructor for several years. CSI is the Center for Special Instruction and is an indoor suspension system. Students who have had difficulty in school, such as skipping classes and defiance of authority, are sent to the CSI room where they are isolated from their classmates to work on their regular school assignments. When Dr. John Moore became principal of Cutler Ridge Junior High School for the 1981-82 school year, he became aware that the CSI program needed to be strengthened. Parents, community leaders, and staff members of the school felt that the CSI program was not supportive of the disciplinary structure of the school, and teachers had been complaining about CSI. When Respondent was informally observed in the CSI room, the students "seemed to be having an extremely good time there . . . [,and] were running their own show, . . . [so] they liked going to CSI." The students were out of their seats, moving around at will, and some were walking in and out of the classroom. The room was noisy and in one instance in November 1979 the students were throwing a football around the room. When Dr. Moore reviewed the schedule for 1981-82, he saw that Respondent had a split schedule of part-time in CSI and part-time in social studies. He changed Respondent to a full-time social studies schedule, initially with four seventh-grade classes and one eighth-grade class. As a result of the suggestion of Respondent and another teacher, Dr. Moore merged the two teachers' schedules so that Dr. Sullivan ended up with a straight seventh- grade schedule. This would have reduced the amount of lesson planning required by Respondent and would have made his work load easier. Seventh-grade social studies is the simplest assignment Dr. Moore could have given a social studies teacher. During the 1981-82 and 1982-83 school years, a pattern could be discerned in Respondent's teaching. During each of those years, there was a relatively positive start with erratic performance during the first semester. By second semester, there was substantial disaster and a total lack of a learning environment. This erosion pattern was attributed to Respondent's teaching techniques. During the first semester of each year, Respondent had the students working at the lowest level of cognitive ability, i.e., memory work. Students became bored with that after a period of time. Respondent was not using feedback mechanisms to tell him what the students were understanding. Respondent did not teach in a logical sequence beginning with the first semester. These things led to frustration and boredom on the part of the students, and negative behavior became apparent. The negative behavior became resistive. This led to the erosion as above described. Respondent was formally observed by Assistant Principal James Marshall on November 16, 1982. Respondent was rated overall unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Respondent was unacceptable in preparation and planning because he had no lesson plans. He was rated unacceptable in classroom management because of the disorganization of his class. He was rated unacceptable in techniques of instruction because he did not adapt materials and methods to the needs and abilities of his students and failed to provide opportunities for the students to express their ideas. He failed to give specific directions to the students and only used one technique of instruction, i.e., the lecture method. Mr. Marshall prescribed help for Respondent. He recommended that Respondent formulate good lesson plans according to the scope and sequence of the curriculum. A portion of the lesson plan should contain a procedure for the evaluation of the students. He recommended that Respondent praise the students and that Respondent try to obtain enough textbooks. If he could not, he should utilize duplicated materials. Mr. Marshall pointed out how Respondent could change the seats of his disruptive children and call the parents to see whether he could get some backup from them. The next formal observation of Respondent was performed by Assistant Principal Albert Villar on January 8, 1982. Respondent was found overall unacceptable and was rated unacceptable in the categories of preparation and planning, classroom management, assessment techniques, teacher-student relationships, and professional responsibility. He was rated unacceptable in preparation and planning because the students were taking a test which was written on the chalkboard. The test was confusing to the students, and they were not certain as to what part of the test they were to take. Further, the test was not visible to the entire class. Respondent was rated unacceptable in classroom management because students walked in and out of the classroom, several students were talking during the test, and some were putting on makeup. Respondent was marked unacceptable in techniques of instruction because the students needed to answer questions with the textbook, and not all of the students had a textbook accessible to them. Respondent told the students to share, which is inappropriate because there would be a tendency to cheat on the examination. Respondent was marked unacceptable in assessment techniques because he did not have a written copy of the test; therefore, it would be impossible for students who are absent to make up the test. There also should have been a copy of the test in the students' folders. Respondent was marked unacceptable in teacher-student relationships because the lack of textbooks led to a relationship which did not reflect equal recognition and respect for every individual. Mr. Villar made recommendations for improvement. He recommended that if Respondent wanted to use a chalkboard test, he should have a written copy in the students' folders, and he should enforce his classroom rules about students not talking during a test. Respondent's next formal observation was performed by the principal, Dr. John Moore, on January 27, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, teacher-student relationships, and professional responsibility. He was rated unacceptable in preparation and planning because the lesson he taught was not the lesson described on his lesson plan. The inadequate planning led to classroom management problems. Throughout the observation, the students were "off task, doing their own thing, talking to each other and so on." The students and Respondent were talking at the same time. Eight students were chewing gum, which is against school rules. Techniques of instruction were rated unacceptable because the students were no on task. Respondent was not getting the students involved in discussions or in expressing their ideas. He was not getting feedback from the students because the students were talking among themselves. With teacher-questioning techniques, Respondent could have gotten the students involved. He could have gotten them on task by giving them quizzes or handouts which could structure their learning. Instructions were given while the majority of the class was talking, and the students were not challenged. Respondent was rated unacceptable in teacher-student relationships because throughout the observations there were repeated examples of students' disrespect, students yelling out across the room, students talking back and refusing to follow instructions. There was no reaction by Respondent. The bulk of the students were not responding. Professional responsibility was marked unacceptable because at the beginning of the year, Respondent was directed to enforce his class rules and to establish an effective learning environment. This was a general disciplinary project for the whole school. Dr. Moore prescribed help for Respondent. He recommended that Respondent work with his department chairman to review grade level objectives and to be certain that his lesson plans reflected the Dade County Balanced Curriculum requirements. Dr. Moore also recommended that he meet with a fellow teacher to review how she prepared her lesson plans. Dr. Moore recommended that Respondent enforce his class rules and that instead of using an oral approach, Respondent should develop handouts for the students. This would give them some structure as to what they are going to do. He recommended having homework guidelines and using review quizzes. Respondent was next formally observed by Mr. Marshall on February 5, 1982. Respondent was rated unacceptable overall and was marked unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Respondent was rated unacceptable in preparation and planning because while he had lesson plans, they were not done according to the sequence and pattern prescribed in the school. Respondent did not get the students to work right away at the beginning of the period and the students were not on task. Classroom management was rated unacceptable because Respondent had no control of the students. The students were doing what they wanted to do and were disrupting the class. Respondent was marked unacceptable in techniques of instruction because he did not adapt materials and methods to the interests, needs and abilities of his students. He was lecturing the students, and this technique did not allow the students to participate. Respondent was marked unacceptable in teacher-student relationships because the relationship was not a positive one: the students were not guided into a class discussion by Respondent; there was no relationship between Respondent and the students, and the students did not want to give information to the teacher. They just wanted to sit there. Mr. Marshall prescribed help for Respondent. He requested that Respondent make sure that each student participate in the learning activities. He recommended that Respondent duplicate the assignments so that there would be enough for all students to have and that Respondent guide the students in a discussion from his daily lesson plan. Respondent was next formally observed on February 16, 1982, by Phyllis Cohen, Area Line Director for the Dade County Public Schools. Respondent was rated overall unacceptable and was found unacceptable in the areas of preparation and planning, knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relationships. The instructions given to the class were not comprehensible. None of the things that were indicated in the lesson plan occurred. As a result, when the students were divided into three groups and told to read, without the appropriate directions, each group proceeded not to read. As the lesson progressed, the behavior deteriorated more and more until at the end of the lesson, three-quarters of the class was off task. There was an elaborate lesson plan, but it was not followed. Knowledge of the subject matter was rated unacceptable because the teacher did not demonstrate a knowledge of the content of the chapter while he was giving class directions. Respondent was marked unacceptable in classroom management because his class management practices needed much improvement. Respondent was marked unacceptable in techniques of instruction because he did not adapt materials and methods to the interests, needs and abilities of the students. Further, he did not use instructional strategies for teaching the subject matter. Respondent was rated unacceptable in assessment techniques because many of the students' papers were not graded, most of the work on file was work book papers consisting of mostly short answers and recall questions, and there were very few essays. Mrs. Cohen recommended help for Respondent. She directed him to develop lesson plans which are useful and which list key concepts, activities, questions and vocabulary. She directed him to work with the principal who would provide models for his use. She recommended that the department head arrange to have Respondent observe a master teacher presenting a civics lesson. She recommended that he observe teachers who exhibit good class control, that he become aware of what the students are doing, and that he review and enforce class standards for behavior. She recommended that he work with the assistant principal to improve class management techniques and that Respondent have a five-minute start-up activity on the board fro students to do when they enter the class in order to settle the class down, take attendance, and begin the lesson in a more orderly fashion. She also recommended that he improve his presentation strategies and teaching techniques by working with the social studies department head. The next formal observation was performed by Mr. Marshall on March 11, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. He was rated unacceptable in preparation and planning because his lesson plans were not adequate, unacceptable in classroom management because there was still a problem with student control and participation, and unacceptable in techniques of instruction since he still was not adapting materials and methods to the interests, needs and abilities of the students and was not providing opportunities for the students to express their ideas. Mr. Marshall prepared a memo in which he listed teaching techniques that would help improve Respondent's teaching. He recommended that Respondent praise the students more. Respondent was next formally observed by the social studies supervisor for the Dade County Public Schools, Paul Hanson, on March 19, 1982. Respondent was rated overall unacceptable and was found unacceptable in the categories of classroom management, techniques of instruction, assessment techniques, teacher- student relationships, and in one subcategory of preparation and planning because the plans which were written were not compatible with what actually took place in the classroom. Respondent was rated unacceptable in classroom management because there was no means of controlling the students who talked and moved about the classroom at will. The discipline was nonconducive to a learning environment since students were talking, out of their seats, and not on task. Very little learning was taking place. Techniques of instruction were marked unacceptable because the students were not motivated, and the instruction given them was not conducive to learning for junior high students. The activities in the classroom did not reflect the adoption of materials and methods to the interests, needs, and abilities of the students, and there was confusion in the class. Respondent was rated unacceptable in assessment techniques because the test which was observed did not equate with the instruction taking place, the test construction was very poor, and there were a number of grammatical errors on it. What was being tested was not compatible with what was being taught at the time, according to the lesson plan. The grades and records of the students' achievement were not up to date but rather were about two to three weeks behind. Therefore, the students' progress was not being monitored on a daily basis. Respondent was marked unacceptable in teacher-student relationships because of the behavior problem in the class. There seemed to be very little respect for the students on the part of the teacher, and it was difficult to determine who was in control of the class. Mr. Hanson recommended that the lesson plan be more specific and that it equate with what takes place in the classroom. He recommended that Respondent observe other teachers for their classroom management techniques and that a staff development course be taken. He also suggested that Respondent observe a master teacher for the techniques of instruction. Mr. Hanson provided some reading materials to Respondent dealing with such topics as how to conduct a classroom discussion, how to manage a social studies classroom, and how to use audiovisual films in a social studies classroom. The next formal observation of Respondent was done by Dr. Moore on April 13, 1982. Respondent was rated overall unacceptable and unacceptable in the categories of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, assessment techniques, teacher- student relationships, professional responsibility, and supportive characteristics. There was no improvement in this observation over the prior observations. Preparation and planning was unacceptable because the majority of students were off task during the observation, the written plan was not in compliance with the prior prescriptions and the lesson plan was not followed by Respondent. Knowledge of subject matter was marked unacceptable because Respondent failed to provide students with necessary explanations to implement the lesson plan. He confused the teaching objective with directions for student activity. Classroom management was marked unacceptable because the students were off task, were frequently moving, were constantly socializing, and a student was permitted to defy Respondent without consequences. Also, there were forty wads of paper on the floor. Techniques of instruction wee marked unacceptable because Respondent gave materials to the students prepared by the National Council of Social Studies for teacher use without modifying or adapting these materials for student use. He did not provide opportunities for students to express their ideas, although this was called for in his lesson plan, and he gave confusing directions to the students. The distribution of the National Council materials caused organization problems, and confusing directions used excessive class time. Respondent was marked unacceptable in assessment techniques because he did not make an assessment of each student's academic progress. He gave the students credit based upon untested assertions of mastery of assignments. He asked the students to "Tell me if you know this . . . I'll mark it down and you can go on. . . ." Teacher-student relationships was rated unacceptable because defiant students regularly disregarded his direction to stop talking. Respondent was marked unacceptable in professional responsibility because he had failed to comply with directives regarding remediation practices. He was found unacceptable in supportive characteristics because it was found that he did not contribute to the total school program. Dr. Moore recommended that Respondent review prior directives on lesson planning and comply with those. He further recommended that Respondent review material with his department head and that Respondent implement the posted consequences for student behavior. Dr. Moore submitted a memorandum to Respondent outlining the problems that he saw in this observation and compiled a list of pertinent materials available in the media center. On April 16, 1982, Dr. Moore made Respondent aware of a parent complaint concerning the basis for a student's grade and the failure to notify the parent of the lack of student progress. As a result of that parent complaint, Dr. Moore reviewed Respondent's grade book and found a variety of deficiencies: There were grades that were not identified; there was no indication of makeup work, and the mechanics of keeping grades were absent. The grade book is a document which is required by law and by School Board rule. It is an attendance record and a primary record of the student's progress as compared to the course standards. Dr. Moore provided a memorandum to Respondent indicating what improvement was needed. Around the same time, Respondent became ill and was hospitalized. A series of memoranda were sent from the school to the Sullivans and vice versa. It was difficult to ascertain the nature of Respondent's illness and the expected length of his absence. Eventually it was determined that Respondent's illness was genuine, and he was given an opportunity to return to his school to complete his prescriptions. Respondent was next formally observed by Althea King, Assistant Principal, on October 18, 1982. This was the first formal evaluation under the TADS system. There is no overall rating on the individual TADS observation forms. This observation showed a great improvement over the prior observations. Prior to this observation, Mrs. King met with Respondent to go over the things she would be looking for and made an appointment with Respondent for her observation. Although Respondent sincerely desired to improve, he was found unacceptable in preparation and planning because his plan did not fill the allotted time. Mrs. King observed Respondent for one hour and found that there were 20 to 25 minutes remaining in the class period when the students had finished an activity and were not provided another activity. Mrs. King noted that preparation and planning is very significant because it is the means of gaining control of the classroom. She recommended that Respondent read certain sections of the teacher handbook and complete activities therein to help him develop a lesson plan that would have the various essential parts. The next formal observation was done by Dr. Moore on November 8, 1982. He found that Respondent's classroom management was above a minimally acceptable level. The class was noisy, but it was under control. There was, however, substantial deterioration in the other categories. Dr. Moore directed Respondent to give priority attention to the other five areas since progress had been made in classroom management. He further directed Respondent to outline the sequence of key concepts and generalizations for each unit and to discuss them with the department head to insure consistent comprehension. He directed Respondent to use inquiry strategies and to review a section in the faculty handbook to implement activities listed therein. He directed Respondent to list specific student objectives in behavioral terms in his lesson plans. The next formal observation was done by Dr. Moore on December 15, 1982. The observation, which was scheduled in advance, was relatively good. There was improvement in a number of areas over the preceding observation although Respondent was still not dealing with students who were off task, a fault which eventually leads to deterioration. Respondent was weak in using feedback mechanism. This is a shortcoming in teacher-student communication, indicating whether or not the teacher knows what the students are really perceiving and learning. In order to help Respondent, Dr. Moore recommended that Respondent read sections in the TADS prescription manual and attend Teacher Education Center workshops on teacher-student relationships and on assessment techniques. Shortly after the Christmas break, there was apparent deterioration of behavior in the classroom. There were reports from other teachers of loud, disruptive behavior. Respondent was directed to confer with Assistant Principal Daniel McPhaul and to make sure the students know that there will be consequences if they do not behave. Starting at this point, there was the same pattern of disruption that had been seen in the prior school year. Respondent was making no visible effort to restore order in his classroom. The next formal observation of Respondent was done by Dr. Moore and Mr. Hanson jointly on February 8, 1983. Respondent was not found acceptable in any category. The class lesson consisted of giving workbooks to the students. There was no teaching, simply a passing out of materials. This failed to keep the students on task. There were consistent violations of the class rules and no consequences. Media still was not being used, and there were wads of paper on the wall. Respondent was marked unacceptable in preparation and planning because his lesson plan did not fill the allocated time. What was planned covered only 30 minutes of a 55-minute period. What was going on in the classroom did not follow the lesson plan, and what was being done was not included either in that lesson or the lesson plan for the next day. While Respondent exhibited knowledge of the subject matter, he was not found acceptable in the area of presentation of the subject matter. He used a "scattergun" approach. With the remaining 30 minutes, he filled in the time with something completely irrelevant to the plan for the day and irrelevant to the general overall plan for the week. The information presented to the children was simply handed to them with no logic or reason why they were getting this information. The information presented was not timely. Only one cognitive level was utilized in the entire classroom period, the lowest level-recall or remembering. No higher or challenging cognitive levels were presented, and the lesson was presented in an uninteresting manner. Classroom management was unacceptable because approximately two-thirds of the students were not on task, and the behavior was inappropriate for a classroom. This resulted in no learning taking place, and Respondent did not seem to make any attempt to correct the situation. Respondent was marked unacceptable in techniques of instruction because he gave a skills lesson which needed some demonstration. However, he simply gave the students materials and told them to do the work. He should have taken the time to give instructions and actually demonstrate what the students were to do. The activities that took place did not give the students an opportunity for participation and verbal interaction with Respondent. The students were not invited to raise questions and were not actively involved in the lesson. It was basically a teacher-directed lesson. The lesson that Respondent presented would have been an opportune one for using media, but Respondent chose not to do so. There was a great deal of confusion on the part of the learners -- they did not know what to do with the materials, and very little clarification took place. Respondent was marked unacceptable in assessment techniques because he did not give the students more than a book-type exercise, which was not challenging, and only required students to recall basic information. This technique did not require them to actually think or apply the knowledge they learned. In the student folders, there was only one kind of evaluation, a dittoed workbook-type of page with mostly fill-in-the-blank type activities. Respondent was marked unacceptable in teacher-student relationships because there was not any mutual respect on the part of the students or teacher. Mr. Hanson found no improvement over his prior observation of March 19, 1982. Mr. Hanson prescribed help for Respondent, and Dr. Moore concurred with those prescriptions. It was recommended that Dr. Sullivan observe a master teacher at a school close to his and that Dr. Moore, a former social studies teacher, help in demonstrating some of the techniques needed in a social studies room. Mr. Hanson provided additional reading materials for Respondent. The next formal observation of Respondent was done by Mrs. King and Mrs. Cohen on March 29, 1983. Mrs. Cohen found Respondent unacceptable in all categories, and Mrs. King found him unacceptable in all categories except teacher-student relationships. Mrs. King found that his lesson plan was much decreased in quality over her prior observation: the objectives did not reflect good planning, the activities did not fill the allotted time, and the plan was not followed. Because of these, she rated Respondent unacceptable in preparation and planning. Knowledge of the subject matter was rated unacceptable because the subject presentation was unacceptable. Information and activities were not timely and accurate, and the sequence of presentation was not logical. Interesting, unusual or important dimensions were not included, and different cognitive levels were not presented. Respondent was rated unacceptable in classroom management because many students were not on task, and behavior management was not done appropriately. Techniques of instruction was marked unacceptable because the materials that were used were inadequate for the lesson. Student participation was very minimal, and there was little, if any, discussion. Students were asked to work on information in their folders. Individual questions were asked and answered but there was no other kind of instruction taking place during the observation. Assessment techniques was marked unacceptable for there was no indication that assessment had taken place or would take place for this particular lesson. The students seemed vague as to what they were supposed to be doing. Teacher-student relationships was unacceptable because there was no attempt to involve all students in the instruction. Basically, there was no instruction. Mrs. Cohen found the same conditions that existed on her previous observation of February 16, 1982. While the method of teaching had changed, as worksheets were distributed and folders were given out, there was still no teaching occurring, there was lots of confusion, and there was little attempt to draw relationships. These things contributed to a lack of control and off task behavior. Mrs. King discussed with Respondent activities that he might use to direct the students, to establish and gain control of their behavior in the class. She recommended written assignments, discussions, and lectures, using a variety of activities that might help give direction to him and to the students in the classroom. The next formal observation was performed by Daniel McPhaul, Assistant Principal, on May 5, 1983. Mr. McPhaul found Respondent unacceptable in all categories except knowledge of subject matter. Preparation and planning was unacceptable because there were some items lacking from the lesson plans, and the lesson plan did not have objectives. Classroom management was unacceptable because there were many students who were not on task strewn about the classroom floor, the desks were out of order, and students were walking around communicating with each other while Respondent was giving instructions. Techniques of instruction was unacceptable because there was no student participation. His instructional strategies were limited. There was no use of media from the library, although some was available to him. Assessment techniques were unacceptable because the lesson ended with the ringing of the bell. There was no time allowed for assessment. He did not ask questions to see if the students understood the lesson and did not evaluate the students. Respondent was found unacceptable in teacher-student relationships because if the students were interested in receiving instructions from Respondent, they would not have been playing around and communicating with each other. Mr. McPhaul suggested that Respondent get the students on task as soon as possible. One way to do this is to have handouts or pop quizzes ready at the beginning of the class. He also suggested that Respondent communicate with parents. He suggested that the students be made to clean the classroom before leaving. On May 25, 1983, Dr. Moore dropped in to visit Respondent because of a teacher's complaint. When he got there, there were several students running out of the door. Respondent indicate that no lesson was in progress, and the students were running around because there was nothing to do. The next formal observation was performed by Dr. Moore on June 1, 1983. There was no improvement: the class was noisy and off task; the lesson did not match the lesson plan; the lesson was not attended to by most of the students; many students talked while Respondent gave instructions; and nineteen out of twenty students did not follow directions. Further, since Respondent was using an inappropriate teaching technique for a fact recall level lesson, five students did nothing, fourteen students wrote statements totally unrelated to the unit they were studying, and only one student wrote one question pertinent to the unit under study. Seven weeks into the nine-week grading period, there were no grades recorded in the grade book. Based on this there would be no way to know what a student had done or how well. There were no codes in the front of the grade book to interpret the grades. There was no basis to explain a child's grade to a parent. Dr. Moore gave Respondent copies of his summatives on or about November 12, 1982, December 17, 1982, February 10, 1983, April 11, 1983, and May 1, 1983. A summative combines the preceding two classroom observations and rates a teacher overall acceptable or unacceptable at any point in the process. All of Respondent's summatives were rated overall unacceptable. Respondent was offered help at other times as well. The assistant principal had conferences with parents of disruptive students. Mrs. Parker taught directly across the hall from Respondent and observed that at times students were completely out of control, with desks and books being thrown across the room. Respondent asked her for help, and she suggested methods of control. There was so much noise coming from Respondent's room that Mrs. Parker would put her stool in the doorway and sit there and control both her class and Respondent's class at the same time. Mrs. Griswold, Respondent's department head, taught across the hall from Respondent. At times she noted the chaos. Quite frequently the students would be talkative and on occasions they would be walking around. The noise interfered with her class to the point that she would have to close her door. She offered to help Respondent by meeting with him on several occasions to discuss lesson plans, methods of controlling students, and using different techniques. She gave him materials to help him. During the 1981-82 school year, she met frequently, on a weekly basis, to go over Respondent's lesson plans. During some time periods, Respondent's lesson plans were more than adequate; at other times, they were not adequate. During the 1981-82, Respondent was told by Dr. Moore to submit lesson plans to Mrs. Griswold. He did not always comply. When he did , Mrs. Griswold went over his lesson plans with him, checking to make sure that the materials that he was using were applicable to the students in his class. She checked to be sure he was following the course outline for social studies for seventh graders. She tried to aid him in any way she could to try to maintain discipline and control in his class. On January 28, 1982, Assistant Principal Marshall gave Respondent a memorandum which dealt with tips for teaching. Mr. Marshall then monitored Respondent with informal observations two to three times a week to see whether Respondent was utilizing the suggestions made to him. The assistant principals had to enter Respondent's room at numerous times to gain control of or restore order to the classroom. Fellow teacher Beverly Dunbar also went into Respondent's room to restore control to his class. She observed that the children were so noisy that her own students could not do their work. When she went into Respondent's room, almost all of the students in the room were out of their seats, throwing papers, books, and throwing over desks. Respondent was standing there, not saying anything to them. They were out of control. On February 5, 1982, Respondent's room was changed to the first floor so that he could be closer to the administrative offices and to relieve the classes which had been around Respondent's classroom. The assistant principals were directed to assist Respondent whenever needed to restore order to his class when it was out of control. The assistant principals removed youngsters from Respondent's classroom and offered to take others out. Mr. Villar had a conference with Respondent to set up classroom rules for him and offered suggestions on the use of a seating chart to take attendance quickly and to become familiar with where students were sitting and to notice patterns in behavior that may become disruptive. Mr. Villar tried several times to talk to Respondent about his problems, but Respondent was not responsive. Mr. Villar also suggested that Respondent observe teachers in their school and in other schools in the same academic areas. He also recommended that Mrs. Griswold assist Respondent on lesson plans, ordering materials, and making sure he had a complete set of classroom textbooks. Mrs. King had conferences with Respondent. She called these her "lay-it-on-the-line" conversations. These dealt with how to get control of the students and force them through classroom activities through discipline measures, to do what they are supposed to be doing. She gave very specific recommendations such as moving certain students and specific kinds of activities that would keep the students involved. One day she went into Respondent's class and began the class for him to show how it could be done and how students could be controlled through various methods. Dr. Moore invited Mr. Hanson, the social studies supervisor, to observe Respondent's class and make recommendations to help the situation. At one point, when the principal observed Respondent's class, the room was so noisy and the students were so off task that he suggested that Respondent work with the students regarding the necessity of self control and following directions. He further recommended that Respondent work with Assistant Principal Villar to arrange for any kind of backup he would need. Dr. Moore also gave education articles to Respondent to read. The principal followed through and arranged for observations of other teachers by Respondent. Respondent was given an opportunity to raise any questions that he had about the type of support he needed. He was given an opportunity to give the administration feedback of the things they were not doing that he would like them to do for him. Dr. Moore compiled a composite record of all the prescriptions that had been given to Respondent in order that Respondent could review them and did a demonstration lesson for Respondent as an example showing the use of techniques which were explained in the readings that were given to Respondent. In spite of all the help that was given, Respondent's class continued to interfere with other teachers' classes. Mr. May testified that the noise was so loud that his students could not hear him dictating a spelling test during a semester examination. Mr. May saw things thrown through the room, such as books, and saw students out of their chairs and totally out of control. He heard glass breaking and saw glass on the ledges of the second floor. He was also afraid that some child would go out a second floor window and recommended to Dr. Moore that Respondent's class be changed to the ground floor. There was no improvement in the control of Respondent's class after he was moved to the first floor. On the occasion that Mrs. Dunbar went up to gain control of Respondent's class, her students were prevented from doing their work by the noise coming from Respondent's room. Other teachers in Mrs. Dunbar's department complained to her, and teachers complained to the assistant principals about the noise in Respondent's room. During informal observations, Respondent fared no better than he did no his formal observations. His class was generally disorganized with 100% of the time being spent without teachings. When Mrs. Dunbar observed Respondent, he was not teaching. There was commotion going on. At times, clapping and chanting could be heard coming from Respondent's room across the courtyard. The administrators received more student and parent complaints about Respondent's class than they did about other teacher's classes. When Mrs. King walked by the halls, she would come in to help establish order in Respondent's class. Sometimes she would be sent for by Respondent or by a student or other teachers. Very often she notices that there was chaos in the classroom with students moving around without inhibition. They were talking, tossing paper, and off task. They were not involved in any kind of constructive classroom activity, and the noise level was very high. On Mrs. Cohen's informal visits to the school, she observed Dr. Moore going into Respondent's room to quiet it because someone had thrown paper outside the room. It was the consensus of opinion of the experts who observed Respondent in the classroom that there was a repeated failure on his part to communicate with and relate to the children in his classroom to such an extent that they were deprived of a minimal educational experience. Respondent has not maintained direction and discipline of students as assigned by the principal and has not kept good order in the classroom. He has not taken precautions to protect the life, health and safety of every student. On one occasion Mr. Marshall had to respond to the Respondent's classroom because of the presence of a railroad spike in the possession of one of the students. Because of the gravity of the situation, the parents of the student were contacted and additional documentation was forwarded to Dr. Moore. During the 1982-83 school year, Assistant Principal King walked by the Respondent's class and observed a student holding a chair up in the air "as if in the intent of throwing it at another student." Another time she observed a student on all fours crawling along a back counter. On those occasions Respondent was standing in the front of the class, simply observing and doing nothing to (re)gain control of the class. During the 1982-83 school year, on several occasions jalousie windows were broken in Respondent's classroom by students playing and bumping into each other. Some students complained to Assistant Principal McPhaul about the noise level and disorder in Respondent's class and the difficulty they had in doing their work due to harassment by other students who wanted to play during class. Overall, during the last two years of Respondent's service, in the 1981-82 and 1982-83 school years, Respondent failed to achieve an acceptable performance rating as determined by eight formal evaluations during the 1981-82 school year, done by five different evaluators, two of which were external to the work site. In the 1982-83 school year, Respondent failed to achieve an acceptable performance rating as noted on nine different formal evaluations conducted by six different evaluators, two of which were external to the school site. The administrators asked Respondent whether there were any health conditions or medical conditions which should be considered in his case. Respondent stated that health was not a factor in his classroom observations. Neither Respondent nor his wife ever communicated to the administrators that there was a health problem that interfered with Respondent's teaching. After his suspension by the School Board, Respondent was examined psychologically and was found to have an inability to organize his social events into a meaningful order. His perceptual abilities are significantly below his age level, and his functioning is significantly below what one would expect given Respondent's level of education and teaching experience. He has extreme difficulty in differentiating relevant versus nonrelevant aspects in his environment. His thinking is highly concrete, and he is unable to coordinate data and integrate them into meaningful concepts. Respondent is verbose and uses circular reasoning to eventually reach a final conclusion. Respondent's examining psychologist determined that it would be difficult for Respondent to learn new techniques for getting a class into order, it would be difficult for him to learn new ways of doing lesson plans in order to structure his classroom activities, he would have a hard time working in a school organization where he had to perceive social situations and what is going on in a classroom, he would have a difficult time dealing with teachers, administrators, and students, and he would have a hard time perceiving the motives of the administration. His perceptions are vague and amorphous, and descriptive in nature. He has inordinate difficulties in capturing the essence of what was presented to him. While there is no evidence of thought disorder, his thinking is vague, disorganized, fuzzy, and reflective of an individual with possible organic factors interfering with his thinking and organizational abilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that a Final Order be entered in Case No. 83-2649 finding Respondent guilty of the allegations contained in the Specific Notice of Charges filed against him, affirming his suspension, dismissing him from his employment, and denying him any claim for back pay. It is further RECOMMENDED that a Final Order be entered in Case No. 83-3793 finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and permanently revoking Respondent's Florida Teacher's Certificate No. 112370. DONE AND ENTERED this 3rd day of January 1985 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig Wilson, Esquire 315 Third Street West Palm Beach, Florida 33401 George F. Knox, Esquire Penthouse 200 Southeast First Street Miami, Florida 33129 Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County School Board 1410 Northeast Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (DADE COUNTY SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 83-2649 WILLIAM D. SULLIVAN, Respondent. /
The Issue The issues in this case are: (1) whether Respondent failed to correct performance deficiencies, thereby justifying termination of her employment as a teacher pursuant to section 1012.34; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1001.32, Florida Statutes. At all times relevant to this proceeding, Respondent was employed as a teacher in the Miami-Dade County Public School District pursuant to a professional services contract. Respondent has been a teacher for approximately 14 years. She began teaching full-time at Gulfstream in the 2004- 2005 school year. During her years at Gulfstream, she taught fifth, third, and second grades, and in the 2010-2011 school year she was a co-teacher assigned to assist other teachers in instructing their students. In the 2011-2012 school year, and in the 2012-2013 school year until she was suspended pending the outcome of this proceeding, Respondent was a first grade teacher at Gulfstream. At all times relevant to this proceeding, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies and procedures, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. The Events Giving Rise to this Proceeding Section 1012.34(3), Florida Statutes, mandates that instructional personnel, including classroom teachers, be evaluated for performance at least once a year. Pursuant to section 1012.34(3), the performance evaluation consists of two components: a student performance component and an instructional practice component. The former is based on student scores on the Florida Comprehensive Assessment Test ("FCAT"), or, for subjects and grade levels not measured by the FCAT, on school district assessments as provided in section 1008.22(8). The latter is based on instructional performance indicators that are evaluated based in part on classroom teaching observations. 2011-2012 School Year March 27, 2012 Evaluation In the 2011-2012 school year, approximately 17 students were assigned to Respondent's first grade class. Pursuant to section 1012.34(3)(a)2., in connection with Respondent's annual evaluation, Gulfstream Principal Concepcion Santana conducted a formal observation of Respondent's instructional practices in her classroom on March 27, 2012, as she taught reading/language arts. She observed Respondent for 40 minutes. In evaluating Respondent, Santana followed the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used throughout the Miami-Dade County Public School District to evaluate instructional personnel. IPEGS consists of eight performance standards that constitute the minimum standards a teacher must meet in classroom instruction. These standards are based on the Florida Educator Accomplished Practices adopted by the State Board of Education, as required by section 1012.34(3)(a)2. Four of the IPEGS performance standards are observable during the classroom instruction portion of the evaluation. The other four are "not observable," meaning that they target performance standards that may not necessarily be observed at the time of the classroom instruction performance evaluation.1/ Santana found that Respondent's instructional practices were deficient with respect to the four observable performance standards ("PS"): Knowledge of Learners (PS 2), Instructional Planning (PS 3), Instructional Delivery and Engagement (PS 4), and Learning Environment (PS 8). PS 2 requires the teacher to identify and address the needs of learners by demonstrating respect for individual differences, cultures, backgrounds, and learning styles. Santana observed that Respondent failed to meet PS 2. Specifically, Respondent did not tailor her teaching to address the various learning styles and levels of the students in her classroom; rather, she presented the lesson in a manner that addressed only one learning level, so that some of the students were not learning. PS 3 requires the teacher to use appropriate curricula, instructional strategies, and resources to develop lesson plans that include goals and/or objectives, learning activities, assessment of student learning, and home learning in order to address the diverse needs of students. Respondent failed to meet PS 3. The activities she conducted did not directly conform to her written lesson plan. Specifically, the students were reading a story that was not identified on the lesson plan, and completing workbook pages that were not identified in the lesson plan while skipping others that were identified in the plan. As a result, the focus and purpose of the lesson being taught was not addressed in the lesson plan. Additionally, the lesson plan did not incorporate multiple instructional strategies to meet the learning needs of all of the students. Respondent failed to use a variety of resources and questioning techniques to cater to the range of learning styles and levels of her students and encourage higher level thinking; rather, the instruction presented that day catered to rote learning. PS 4 requires the teacher to promote learning by demonstrating accurate content knowledge and by addressing academic needs through a variety of appropriate instructional strategies and technologies that engage learners. Respondent also failed to meet PS 4. She did not deliver the instruction at a pace appropriate to engage all students. Additionally, her instructional delivery failed to incorporate a range of strategies so that again, not all students were engaged in the lesson. As a result, many students were off-task, and frequent interruptions distracted students who otherwise were on-task. PS 8 requires the teacher to create and maintain a safe learning environment while encouraging fairness, respect, and enthusiasm. Respondent failed to meet PS 8. Santana noted that there appeared to be little evidence of specified classroom procedures that the students understood and followed, so as to create an environment conducive to learning. As a result, students were up out of their seats, asking to go to the restroom, and fiddling with their papers and pencils. Following the observation, Santana documented her observations on a form titled "IPEGS Observation Standards Form- Teacher" ("IPEGS Form"). In compliance with section 1012.34(3)(c), Santana notified Respondent in writing of a scheduled support dialogue meeting. The purpose of the support dialogue meeting was to provide feedback regarding the classroom observation and to discuss strategies and supportive actions that could be provided to Respondent to assist her in remediating her deficiencies and improving her instructional performance. Santana's support dialogue meeting with Respondent took place on March 29, 2012. Present at the meeting, in addition to Santana and Respondent were a UTD representative; a reading coach, Mariela Rapp; and an assistant principal. Santana provided the completed IPEGS form for the March 27 classroom observation to Respondent and discussed with her the observed deficiencies, including instructional strategies that she could have incorporated into the lesson to make it more effective. Rapp and another reading coach, Lynn Carrier, were assigned to provide support to Respondent, and strategies to assist her were devised. Respondent was informed that she had 21 days in which to implement the actions prescribed in the support dialogue meeting, and that at the end of that period, Santana would conduct another classroom observation. April 25, 2012 Evaluation Santana conducted another formal classroom observation of Respondent's teaching on April 25, 2012. This time, she observed Respondent for the entire reading/language arts instructional block lasting two hours. Respondent did not meet PS 2. Again, she did not incorporate instructional strategies to cater to the learning styles and levels of all students in her class. Santana noted that Respondent's instructional performance on this standard was very similar to that she had observed on March 27, 2012. Respondent also failed to meet PS 3. Specifically, she did not incorporate a variety of instructional strategies in her lesson plans to meet the varied needs of the students in the class. As a result, she failed to address the diverse learning needs of her students as required by PS 3. Similarly, Respondent failed to meet PS 4. Once again, Respondent's instructional delivery and engagement techniques failed to keep many students on-task. Santana attributed that to Respondent's failure to adequately pace the lesson or to effectively provide differentiated learning experiences to meet the students' varied learning styles and levels. Santana further noted that the lesson was disorganized. Respondent created differentiated learning centers at which the students would engage in various learning activities; however, she provided no guidance, so the students were unable to effectively engage in the activities for which the centers were prepared. Specifically, at the computer-based learning center, the computers were not prepared for the instructional activity, so time was wasted logging onto the computers; consequently, the students had little time to work on the activity. At another learning center involving a device called "Leap Pad," the books and accompanying cassette cartridges were not grouped together, so the students spent time trying to find the matching books and cartridges and, as a result, wasted what was supposed to be instructional time. Because of these problems, students repeatedly interrupted the teacher-led instructional center, interfering with learning at that center. Respondent again failed to meet PS 8. Respondent's failure to establish classroom procedures for the various learning centers and her lack of success in redirecting off-task students to reengage in the assigned learning activities created a disruptive environment that did not promote student learning. Following the April 25, 2012, observation, Santana completed another IPEGS Form. Because Respondent showed no improvement from the March 27, 2012, observation, Santana scheduled a conference for the record ("CFR"). A CFR is a formal meeting to discuss a teacher's performance deficiencies and develop a plan to remediate those deficiencies. Respondent was notified in writing of the CFR, which was rescheduled per Respondent's request. Respondent attended the meeting with two UTD representatives; also attending were Rapp and an assistant principal. By written notice and at the CFR, Respondent was informed that she was being placed on 90-day performance probation, pursuant to section 1012.34(4), as of the date of the CFR. An IPEGS Improvement Plan ("IP") was developed to assist Respondent in remediating her instructional performance deficiencies. An IP is a written document that discusses each performance deficiency; identifies specific resources available to assist the teacher in remediating each specific deficiency; sets forth remedial activities specific to each deficiency in which the teacher and assisting persons are to engage; and establishes deadlines for completing the specified activities. In the IP, Respondent and reading coaches Rapp and Carrier were directed to work collaboratively to improve Respondent's instructional techniques and pacing so as to engage all students in the lessons. To this end, Rapp and Carrier were to assist Respondent in developing lesson plans and identifying instructional strategies and activities to meet the learning needs of all of her students. Additionally, Respondent was given the opportunity to engage in collaborative planning with her peer professionals (i.e., other first grade teachers) and with the reading coaches. She also was provided access to a nationally board certified teacher at Gulfstream who assists teachers in improving their teaching performance. The IP further directed the reading coaches and peer professionals to observe Respondent and provide constructive feedback and assistance to Respondent as she attempted to implement instructional techniques and strategies. The IP also identified Common Core Standards, reading/language arts pacing guides, and reading/language arts planners as resources available to assist her in developing appropriate planning objectives, appropriately pacing her lessons to address her students' needs, and developing her lesson plans. As part of the IP, Santana directed Respondent to prepare a written plan addressing how she would tailor her instruction to address student learning styles; use appropriate instructional materials and techniques; and use differentiated instructional groups and learning centers. The written plan was to be submitted to Santana by May 29, 2012. Respondent was further directed to develop lesson plans to improve her instructional delivery strategies. Those plans were to be submitted to the assistant principal. The IP directed Respondent to read the book "How to be an Effective Teacher: The First Five Days of School" and to submit to an assistant principal a reflective summary discussing effective strategies for addressing inappropriate student behavior and managing the learning environment. Respondent also was directed to consult with the reading coaches and peers to develop effective strategies for redirecting inappropriate student behavior. To assist Respondent in implementing her IP, Santana prepared a support calendar that detailed, on a weekly basis for a 21-day period, the activities in which Respondent was to engage. The support calendar specifically identified the reading coaches, peers, and other professionals responsible for working with Respondent as she performed the assigned activities. During the first week of the IP implementation period, Rapp provided assistance to Respondent in planning for the reading/language arts instructional block that would be conducted the following week. Respondent worked with Rapp to interpret current Florida Assessments for Instruction in Reading ("FAIR") testing data and use the data to effectively plan for differentiated instruction. Also during the first week, Respondent observed reading/language arts instruction in a peer's classroom and participated in a debriefing session with Rapp and Carrier after the peer teaching observation. The following week, Respondent participated in an activity cycle during which she collaboratively planned with reading coaches Rapp and Carrier; observed peers teaching reading/language arts; observed Rapp modeling effective reading/language arts teaching strategies and techniques; co- taught reading/language arts with Rapp to practice these strategies and techniques; and taught the reading/language arts block while being observed by Rapp and Carrier. This same activity cycle, consisting of collaborative planning,2/ reading coach and peer modeling and observation, co- teaching, and teaching by Respondent, was repeated in the final week of the IP implementation period. Collectively, these activities were designed to assist Respondent in planning for the use of content and instructional techniques and strategies appropriate for her students. They also demonstrated to Respondent how to identify and implement effective instructional techniques and strategies, provided assistance as she learned to implement these techniques and strategies, and afforded the opportunity for Respondent to benefit from constructive feedback regarding her efforts to utilize these techniques and strategies. On May 16 and May 24, 2012, Rapp and Carrier observed Respondent as she taught a reading/arts lesson. In the lesson, she was to employ the instructional techniques and strategies that had been provided and presented to her by the reading coaches, peer professionals, and reference resources during the implementation of her IP. According to Carrier, Respondent did not adhere to the prepared lesson plan and did not incorporate the techniques and strategies that had been provided to her by the reading coaches and peer teachers through her IP.3/ Shortly after Respondent completed the activities set forth in the IP, the 2011-2012 school year ended. Condition of Respondent's Classroom in 2011-2012 At the beginning of the 2011-2012 school year, Respondent had been assigned to a free-standing portable classroom not located in the main building at Gulfstream. In late September or early October 2011, Respondent complained to Santana about the air quality in her classroom—— specifically, that there was musty smell that made it difficult for her to breathe and aggravated her allergies. Santana contacted Mr. Cruz-Munoz of the Miami-Dade Public Schools asbestos management division to inspect Respondent's classroom. Within a couple of days, Cruz-Munoz conducted the inspection and found no visible mold or mildew. He noted that the musty smell was typical of portables, like Respondent's classroom, that were older and had wood paneling. He noted that although the room generally was clean, it contained many boxes and a large amount of clutter, both of which may attract dust. He recommended that the boxes and clutter be kept to a minimum to prevent dust collection. Within a week, Respondent's classroom was thoroughly cleaned by a maintenance crew. After the classroom was cleaned, Respondent complained to Santana that she noticed a cleaner smell. Santana contacted Cruz-Munoz, who assured her that the cleaners were water-based and did not contain allergens. Santana informed Respondent of this and suggested that the cleaner smell would dissipate over time. In January 2012, Respondent again complained to Santana about the smell of the classroom and that it was aggravating her allergies. Santana again contacted Cruz-Munoz, who arranged another inspection of the classroom. The inspector again reported that the classroom generally was clean and free of visible mold and mildew but contained many boxes; again, the importance of minimizing the number of boxes and clutter so as to avoid collecting dust was stressed. At that point, Santana referred Respondent to workers' compensation so that she could obtain medical attention to address her health issues. At some point in January 2012, Respondent contacted Robert Kalinsky, a regional director with the Miami-Dade Public School system, regarding the air quality and odors in her classroom. Kalinsky was one of Santana's supervisors at the time. Kalinsky notified Santana that Respondent had contacted him and that he also had received a call about about the condition of the classroom from a member of the Miami-Dade County School Board. As a result, Kalinsky paid a visit to Gulfstream. On February 7, 2012, Santana met with Respondent and an assistant principal regarding a number of issues, including the condition of Respondent's classroom. At that meeting, Santana noted that during the recent visit by Kalinsky and personnel who inspected the classroom, the room was observed cluttered with piles of paper on the desk and many other areas, and that there numerous boxes. At the meeting, Santana reminded Respondent regarding many other issues, including those related to classroom and school library procedures and instructional delivery. Effective February 7, 2012, Santana reassigned Respondent to a different classroom that was located in the main building at Gulfstream. Thereafter, Respondent did not have any complaints about the air quality or odors in the classroom to which she had been assigned. She did continue to complain about the odor of air fresheners and scented candles used throughout the school. Santana noted that she regularly dealt with issues similar to those raised by Respondent because she received frequent complaints from teachers regarding the air quality, mold, and odors at Gulfstream due to the school building's advanced age. Santana credibly testified that she never, at any point, became angry with Respondent regarding her concerns about the air quality and odor in the portable classroom, or any actions Respondent that had taken to address those concerns. 2012-2013 School Year Pursuant to section 1012.34(4)(b)1., school vacation periods are not counted as part of the 90-day performance probation period. Accordingly, Respondent's probation period carried over from the end of the 2011-2012 school year to the 2012-2013 school year. When the 2012-2013 school year commenced, her 90-day probation period continued. September 12, 2012 Evaluation On September 12, 2012, Santana formally observed Respondent's classroom teaching for the third time. She observed Respondent for the full duration of the reading/language arts block, approximately two hours. Respondent again failed to meet PS 2. Her instruction did not incorporate techniques and strategies to address the various learning styles and levels of the students in her class. As a result, many students were bored; one student was observed with his head on his desk. Other students attempted, unsuccessfully, to get Respondent's attention to answer questions they had. Respondent was unsuccessful in explaining the small group activities so that several students were off- task. By the time Respondent redirected the off-task students, little time was left for them to engage in the planned activities. Santana observed no improvement in Respondent's performance on this standard when compared to the two previous observations. Likewise, Respondent failed to meet PS 3. She did not develop or present a lesson that addressed logical, sequential goals and objectives and she did not cover the material identified in the lesson plan. Once again, she failed to use differentiated instructional techniques and strategies to address the students' individual learning styles. The lesson was directed only at one skill level and one learning style. Worksheet activities were completed by the entire class, with some students calling out the answers while the others copied those answers on the worksheet. The partner reading portion of the exercise was disorganized and the students were not given adequate direction, so that many students did not understand how the activity was to be conducted. Santana did not observe any improvement in Respondent's performance on this standard. Respondent also failed to meet PS 4. Her teaching did not include activities directed at eliciting higher order thinking, so did not engage all of the students. Several students were overheard saying they were bored, had already read the material, or already knew the concepts being presented. Other students were off-task, reading stories that had not been assigned. When students were assigned to small groups, insufficient direction was given so that many students did not understand what they were to be doing. In particular, the lack of organization with respect to the computer-based portion of the lesson resulted in students wasting a substantial amount of time before being re-directed to the assigned task. Santana did not observe any improvement in Respondent's performance on this standard. Respondent again failed to meet PS 8. Santana noted that the learning environment and activities were not academically challenging and did not engage all of the students. Students were not given adequate instruction on the activities in which they were to be participating. In particular, the partner reading portion of the exercise was disorganized and many students did not understand how the activity was to be conducted. Santana did not observe any improvement in Respondent's performance on this standard. Following the September 12 evaluation, Santana completed the IPEGS Form, conducted another performance review with Respondent, and issued another IP for her on September 18, 2012. Once again, the reading coaches and peer professionals were made available to assist Respondent in implementing the IP. The Common Core Standards, reading/language arts pacing guides, and reading/language arts planners also were resources to which Respondent was referred. The activities in which Respondent was directed to engage to correct her performance deficiencies for PS 2 and PS 3 were very similar to those identified her May 7, 2012 IP. With the new school year, Respondent had a new class of students, and Santana emphasized the importance of Respondent being able to assess those students' learning styles and levels and to plan how she would assign them to instructional groups. Respondent was directed to prepare and submit to the assistant principal weekly lesson plans containing goals, objectives, activities, and strategies to provide instruction aimed at the her students' diverse learning styles and levels. To help Respondent correct her PS 4 deficiencies, the IP emphasized that Respondent was to observe the reading coach (Carrier) and her peers as they modeled effective instructional techniques and activities designed to reach diverse student learning styles and levels. To correct her PS 8 performance deficiencies, Respondent was directed to work with the reading coach and peers to establish a plan for effective classroom procedures, to prepare a written summary of the plan, and to provide the summary to the assistant principal. Additionally, Respondent was directed to observe peer professionals as they taught; to prepare and provide to the assistant principal a list of the effective teaching techniques she observed; and to incorporate three of those techniques into her classroom teaching. She also was directed to maintain a log of teaching techniques she used in her class, with discussion of which techniques were effective or ineffective and why. The log was to be provided to and discussed with Carrier, so that Carrier could assist Respondent in developing and implementing successful classroom techniques and procedures. Again to ensure that everyone involved in implementing Respondent's IP understood their roles and responsibilities, Santana established another 21-day support calendar detailing the specific activities to be conducted on specific days. The activities entailed collaborative planning with Respondent, Carrier, and grade level peers; Respondent working with Carrier and peers to develop small group and differentiated instructional teaching techniques; Respondent's observation of grade level peer teaching and post-observation debriefing regarding instructional best practices; and Respondent's implementation of those best practices in her teaching, to be observed by Carrier, with feedback provided. Respondent engaged in all scheduled activities and timely completed the September 18, 2013, IP. October 11, 2012 Evaluation On October 11, 2012, a fourth formal classroom observation of Respondent was conducted, this time by assistant principal Marybel Baldessari. Baldessari observed Respondent teaching reading/language arts for an hour and a half. Once again Respondent failed to meet PS 2, 3, 4, and 8. With respect to PS 2, Respondent again failed to present differentiated instruction that targeted individual student learning styles and levels; as before, her instruction was aimed only at one learning style and level. With respect to PS 3, Respondent did not ensure that materials were properly organized to accommodate assistance by an interventionist who was working with her that day. As a result, the lesson was disorganized and the lesson was not presented in a logical, sequential manner. With respect to PS 4, again Respondent's instruction was not tailored to meet the students' individual learning styles and levels. Respondent did not appropriately pace the lesson and did not employ teaching techniques, such as appropriate questioning, to encourage students' critical thinking. Respondent again failed to meet PS 8. Students were off-task; in particular, one was off-task for the entire observation period without ever being redirected to the assigned activity. Respondent also had implemented a behavior plan in the classroom involving colored cards, so that when a student was disciplined, he or she was sent to a "behavior wall" to turn over a card on the behavior chart. On this day, a student who was sent to the behavior chart found his card already turned over from the previous day. This evidenced Respondent's lack of attention to detail in maintaining a classroom environment conducive to appropriate student behavior. Baldessari documented Respondent's deficiencies from the October 11, 2012, observation on the IPEGS Form. Santana scheduled a meeting with Respondent on October 17, 2012, to discuss Baldessari's observations. At the meeting, Respondent was given yet another IP. With respect to remedying Respondent's PS 2 performance deficiencies, Respondent was given the same support resources. Respondent was again directed to meet with Carrier and grade level peer professionals to develop differentiated instructional activities and techniques, to incorporate those activities and techniques into lesson plans, and to provide those lesson plans to Baldessari. Respondent also was directed to meet with Carrier and peers to analyze test and observational data, and to use the information gleaned from that data to plan for differentiated instruction based on individual student learning styles and levels. To remedy her PS 3 deficiencies, Respondent was again referred to Carrier and peer professionals, the Common Core Standards, reading/language arts pacing guides, and reading/language arts reading planners. She was again directed to work with Carrier to develop appropriate lesson plans incorporating appropriate instructional strategies. These plans were to identify appropriate goals, objectives, activities, and instructional strategies and were to be provided to Baldessari. Respondent was assigned to read the book, "Understanding Common Core Standards," and to discuss those standards with Carrier and provide a written summary to Baldessari. With respect to PS 4, Respondent was referred to the same remedial resources as for PS 3. Respondent was directed to work with Carrier and selected peer professionals, who would assist her with planning and developing instructional techniques and strategies to appropriately pace lessons and engage all students. With respect to PS 8, Respondent was directed to work with a special education program ("SPED") specialist to develop effective classroom management procedures. She was assigned to prepare and submit a written summary of these procedures to Baldessari. She also was directed to observe peers, identify effective teaching techniques they used to maintain an academically stimulating and challenging environment, submit a list of those techniques to Baldessari, and incorporate three of those techniques into her teaching. Once again, she was directed to maintain a log listing instructional techniques she used, with discussion of which were effective or ineffective and why. The log was to be provided to and discussed with the Carrier so that she could assist Respondent in developing successful classroom techniques and procedures. Those techniques were to be implemented in Respondent's classroom teaching. Santana developed another support calendar to implement Respondent's latest IP. The support calendar identified activities in which Respondent was to engage with Carrier and the SPED specialist; scheduled time for Respondent to observe and discuss peer teaching techniques; and scheduled collaborative planning sessions in which Respondent, Carrier, and grade level peers were to address the development of differentiated instructional strategies. Carrier worked closely with Respondent to implement the October 17, 2012, IP. In doing so, Carrier demonstrated to Respondent how to incorporate certain instructional techniques into her teaching to better engage the students and enhance their learning experience.4/ Carrier stressed the importance of organization and preparation before the lesson in order for the instructional techniques to be effective. Carrier and Respondent also practiced the use of the instructional techniques. However, when it was time for Respondent to teach the lesson, she was disorganized and unprepared, resulting in a substantial amount of time being wasted on logistical matters, such as having essential materials on hand and ready for use, that should have been addressed before the lesson commenced.5/ Carrier also discussed with Respondent the importance of moving around the classroom to keep students focused and on- task. Nonetheless, Carrier observed that Respondent spent most of her time sitting in a chair in front of the classroom. The chair did have wheels, so occasionally Respondent would roll down the center isle of the classroom.6/ During her time in working with Respondent, Carrier observed that Respondent's classroom was messy and disorganized. Books and clutter were all over the place, so that it was difficult to locate resources that were needed to conduct the lessons. Carrier also observed that there were many pieces of information written on the board in an unstructured, disorganized manner, including information from lessons days ago and random vocabulary words, so that it was very difficult to decipher the information Respondent was attempting to convey in using the board. Carrier further noted that words frequently were misspelled and that there were grammatical errors in the information Respondent wrote on the board. Respondent timely completed the activities set forth in the October 17, 2012, IP. November 19, 2012 Evaluation On November 19, 2012, Santana conducted a fifth formal observation of Respondent's classroom teaching. She observed Respondent teaching reading/language arts for an hour and five minutes. Respondent again failed to meet PS 2. Once again, Respondent's instruction provided only one level of complexity and did not cater to the students' different learning styles and levels. The students were reading a story, and instead of incorporating instructional strategies aimed at meeting all students' learning abilities——such as instructing the high level students to write a paragraph, the grade level students to write a sentence, and the lower level students to draw a picture, about the story——she merely had all of them fill in the same workbook page. Respondent did not exhibit any improvement with respect to meeting PS 2. Respondent also failed to meet PS 3. Her lesson plans were not aligned to the instructional pacing guide and did not incorporate strategies to address the students' diverse learning styles and levels. Respondent did not exhibit any improvement with respect to PS 3. Respondent again failed to meet PS 4. Her instructional delivery did not actively engage the students and did not address their individual learning styles and needs. Because her instruction addressed only one level of complexity, she lost the high functioning and low functioning students. As a result, there were frequent interruptions that interfered with the pace of the instruction and caused students to engage in off-task behavior. Respondent did not exhibit any improvement with respect to PS 4. Respondent also failed to meet PS 8. The learning environment was neither challenging nor stimulating. Although the students were working in small groups presumably established according to learning style and level, they nonetheless were reading the same story and answering the same questions. That, and Respondent's continued failure to establish clear classroom procedures and expectations, resulted in frequent interruptions and distractions. Respondent did not exhibit any improvement with respect to PS 8. Recommendation to Terminate Respondent's Employment A post-observation meeting was held on November 29, 2012, and Respondent was properly notified of this meeting. At the meeting, Santana informed Respondent that she had failed to remediate her classroom performance deficiencies within the 90- day probation period, so that she (Santana) was recommending that Respondent's employment contract be terminated. Santana prepared a memorandum to the Miami-Dade Public Schools South Regional Director dated November 29, 2012, detailing Respondent's repeated failure to meet PS 2, PS 3, PS 4, and PS 8. The memorandum also stated: "Data indicate that this employee has not demonstrated corrective action." The memorandum recommended termination of Respondent's employment contract. Petitioner presented evidence, consisting of a summary exhibit and testimony from Gisela Field, the administrative director of the Office of Assessment, Research, and Data Analysis for Miami-Dade Public Schools, that Respondent's students' median percentile scores on the 2012 Stanford Achievement Test ("SAT")7/ for Grade 1 for both language arts and mathematics were below those for first grade students at Gulfstream as a whole, and for first grade students in the Miami-Dade County Public School District.8/ Santana did not testify that Respondent's students' SAT median percentile scores were considered in her evaluation of Respondent, or that they constituted a basis for her decision to recommend that Respondent be terminated. Petitioner asserts that the "data" to which Santana's November 29, 2012, memorandum refers are Respondent's students' SAT median percentile scores, evidencing that Santana did consider these scores in evaluating Respondent, and that they were one of the bases for her recommendation that Respondent be terminated.9/ Petitioner did not present any evidence regarding the relative weight given to Respondent's students' scores in conducting her performance evaluation. Respondent's Defenses Respondent began teaching in the Miami-Dade County Public School system in 1989. Thereafter, she took some time off to have children. As previously noted, she resumed fulltime teaching in the 2004-2005 school year. For the period commencing with the 2004-2005 school year, through the 2010-2011 school year, Respondent always received satisfactory classroom performance evaluations.10/ At the final hearing in this proceeding, Respondent testified that she was knowledgeable in preparing lesson plans; adhered to Miami-Dade County Public School District instructional pacing guidelines; engaged in collaborative planning with her colleagues and exchanged ideas regarding making the lessons exciting, fun, and interesting; used objectives, visual aids, posters, computers, books, and hands-on materials to engage students; and employed instructional techniques to address students' diverse learning styles and levels. She further testified that she closely observed her students and obtained feedback from them throughout the instructional day. Respondent also testified that she engaged her students in activities designed to get to know them, that she was sensitive to her students' experiences, that she attempted to make them feel comfortable and safe and to provide a warm and loving environment, and that she knew how to communicate with them and manage their classroom behavior. With respect to specific performance deficiencies identified over the course of the classroom observations conducted by Santana and Baldessari, Respondent asserted that some of the issues with instruction using computers stemmed from technical issues with the computers. In those instances, Respondent would have the students engage in reading activities using books until it was time for them to rotate to another learning center. Respondent believes she was a better teacher in 2011 than she was in 2004 when she re-entered the teaching field fulltime. In her view, this is due to her having participated in personal development workshops, receiving one-on-one instruction, and adapting her teaching style to new curriculum and materials. Respondent asserts that she did not teach any differently in the 2011-2012 and 2012-2013 school years than she had in the 2004-2005 school year or any other school year. Respondent contended that she is, and always has been, a very competent teacher, and that the negative performance evaluations she received during the 2011-2012 and 2012-2013 school years were unfair and illegitimate. Regarding the condition of the portable classroom to which she was assigned in the 2011-2012 school year, Respondent began to complain to Santana about the room's odor shortly after the beginning of the school year. In January 2012, she did contact Santana's supervisor Robert Kalinsky to express her concerns. Ultimately, she filed a worker's compensation claim. Once she moved to a different classroom in February 2012, she no longer experienced problems with odors in her classroom. She did continue to have problems with the use of air fresheners and scented candles in other parts of the school building. Respondent noted that only after she complained about the odor and air quality in the portable classroom did she begin receiving negative classroom performance evaluations. She contends that she received negative evaluations for having complained——particularly to Kalinsky and the School Board member——about the condition of the portable. Toward the end of the 2011-2012 school year, Respondent applied for a transfer from her instructional position at Gulfstream to another instructional position at another school in the Miami-Dade County Public School District. Both Santana and the Executive Director approved the transfer. Respondent found an instructional position in another school in the Miami-Dade County Public School District, but did not follow through with the transfer. The school was farther from her home than was Gulfstream, so teaching there would entail longer driving time and would add wear and tear to her older vehicle.11/ Findings of Ultimate Fact In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate her employment for failure to correct performance deficiencies pursuant to section 1012.34, and for "just cause"——specifically, for incompetency due to inefficiency, pursuant to section 1012.33 and rule 6A-5.056. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.34 and 1012.33 and rule 6A-5.056 alleged in the Notice of Specific Charges. Failure to Correct Performance Deficiencies With respect to the charge that Respondent failed to correct performance deficiencies under section 1012.34, the evidence establishes that Respondent consistently engaged in poor and ineffective classroom instructional practices and that she repeatedly failed to correct these instructional practice deficiencies, notwithstanding the very substantial effort that Santana, reading coaches Rapp and Carrier, and Respondent's peers devoted to assisting her in improving her teaching performance. Specifically, the evidence showed that Respondent was consistently ineffective at addressing the individual learning needs, styles, and levels of her students; that she failed to employ appropriate instructional strategies and resources to develop lesson plans that include goals, objectives, and activities to address her students' diverse needs; that she did not address her students' academic needs through a variety of appropriate instructional strategies and techniques that engage them in the learning process; and that she was ineffective in creating and maintaining a classroom environment conducive to learning. The credible evidence does not show that Respondent received negative instructional practice evaluations in retaliation for having complained about the condition of her classroom in the 2011-2012 school year. Rather, the persuasive evidence——which includes corroborative testimony and an IPEGS observation by Baldessari and testimony by Carrier——shows that Respondent received negative performance evaluations because she failed to meet the IPEGS performance standards. However, the evidence failed to adequately address the student performance component of Respondent's performance evaluation pursuant to section 1012.34(3)(a)1.a. As discussed in greater detail below, section 1012.34(3)(a) places great emphasis on student performance on student learning growth assessments——specifically, the FCAT or school district assessments——in evaluating the performance of instructional personnel. Indeed, the statute mandates that at least 50 percent of a performance evaluation be based on data and indicators of student of student learning growth as assessed annually by the FCAT or by school district assessments. Only where (as here) less than three years of data for student learning growth assessments (i.e., FCAT or school district test scores) are available can the percentage of the teacher's performance evaluation based on student learning growth be reduced to less than 50 percent——and even then, it cannot be reduced to less than 40 percent. Here, Petitioner did not present any evidence regarding the relative weight that Santana assigned to Respondent's students' 2012 SAT median percentile scores for language arts and mathematics in evaluating Respondent under section 1012.34. Accordingly, it cannot be determined whether the required relative weight of at least 40 percent was given to the scores in evaluating Respondent, and, ultimately, in recommending that she be terminated. For this reason, Petitioner did not prove that Respondent failed to correct performance deficiencies pursuant to section 1012.34 such that her employment should be terminated. Incompetency Due to Inefficiency As previously noted above, the evidence showed that Respondent consistently and repeatedly was ineffective at addressing the individual learning needs, styles, and levels of her students.12/ She repeatedly failed to employ appropriate instructional strategies and resources to develop lesson plans that include goals, objectives, and activities to address her students' diverse needs. She failed to address her students' academic needs through employing a variety of appropriate instructional strategies and techniques to engage them in the learning process. She consistently used the same instructional materials and techniques to teach students of varying learning styles and levels and did not adequately pace the lessons. She also failed, on a consistent basis, to create and maintain a classroom environment conducive to learning. Her room was disorganized and cluttered, with misspelled words and grammatical errors written on the blackboard. She often was unprepared, so did not efficiently conduct the lessons. She did not establish consistent classroom procedures to address student behavioral issues and keep students on task. As such, Respondent consistently and repeatedly failed to effectively communicate with and relate to the students in her classroom to such an extent that the students were deprived of minimum educational experience. Due to her inefficiency, she was neither able nor fit to discharge her required duties as a teacher.13/ Moreover, the evidence establishes that Respondent failed to perform duties prescribed by law.14/ Section 1012.53(1) provides in pertinent part that the primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals and to meet state and local achievement requirements. The evidence establishes that due to Respondent's serious, repeated performance deficiencies previously described herein, she did not work diligently and faithfully to, and did not succeed in, helping her students meet or exceed the annual learning goals they were supposed to meet as prescribed by curriculum and lesson plans. Nor did she work diligently and faithfully to help them meet state and local achievement requirements. In fact, Respondent's students' 2012 SAT median percentile scores—— particularly for mathematics, which shows their achievement as much as 34.5 percentile points lower than all first graders in the Miami-Dade County Public School District——stand as strong evidence to this point.15/ The evidence also established that Respondent's teaching practices and classroom were so disorganized that the welfare of her students was diminished.16/ Her lack of organization in teaching caused confusion on the part of her students and instructional time often was wasted. Further, the disorganization and clutter in her classroom made it difficult to locate resources for the lessons. It was apparent at the final hearing that Respondent cares about her students and believes that she is a good teacher. However, Respondent's personal feelings and beliefs do not overcome the strong evidence presented in this case showing that she is not a competent teacher. Petitioner proved that, for the reasons set forth herein, Respondent is incompetent due to inefficiency, pursuant to rule 6A-5.056.17/ Accordingly, Petitioner proved that just cause exists under section 1012.33 to terminate Respondent's professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order terminating Respondent's professional services employment contract on the basis of just cause under section 1012.33, Florida Statutes. DONE AND ENTERED this 7th day of January, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2014.
Findings Of Fact Respondent, Gloria E. Walker, holds Teaching Certificate No. 294140, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of music education. Respondent has been employed as a Music Teacher by Petitioner, School Board of Dade County since 1970. From 1973 until 1986, Respondent taught music at Dunbar Elementary School in the Dade County School District. During the 1970-71 through 1977-78 school years, Respondent received either unacceptable or marginally acceptable scores for five of the seven years on her annual evaluations. (Petitioner's Exhibits 29). During the 1973-79 school year, the School Board altered its evaluations System for instructional Personnel. During the 78-79 through 83-84 school years, Respondent's annual evaluations were rated as acceptable. However, during the school years 1981- 82 through 83-84, school and district Personnel made comments concerning Respondent's need to improve her performance and development in certain areas. (TR 298). Commencing with the 1973 school year, Respondent received assistance from Charles Buckwalter, music specialist for elementary schools for the Dade County School District. Respondent was initially contacted by Mr. Buckwalter that year because of concerns the school's Principal expressed regarding Respondent's lack of classroom management. During that year, Mr. Buckwalter visited and provided assistance to Respondent approximately seven (7) times. Mr. Buckwalter's assistance to Respondent continued during the following three (3) years. During the 1981-82 school year, Mr. Buckwalter assisted Respondent on more than four occasions during which time he attempted to demonstrate lessons concerning management techniques and the use of new materials; objectives of instruction and on January 26, 1982, Buckwalter, along with Dr. Howard Doolin supervisor of music for Dade County, visited Respondent so that Dr. Doolin could observe Buckwalter's assistance to Respondent. On April 26, 1982, Respondent and Mr. Buckwalter met for approximately three and one half hours. Buckwalter visited several of Respondent classes and demonstrated the use of certain new materials. As a part of that visit, he observed Respondent's teaching and noted that Respondent abandoned the new materials and returned to teaching the old curriculum. On November 11, 1982, Mr. Buckwalter spent approximately three hours with Respondent in which time he visited two classes and had a conference with Respondent concerning the new curriculum for level 1 students. On November 18, 1982, Mr. Buckwalter made a follow-up visit concerning Respondent's lesson plans and objectives. Additionally, he demonstrated a lesson to one of Respondent's classes. On or about November 29, 1982, Respondent was formally observed by assistant principal, H. Elizabeth Tynes. Ms. Tynes has a wealth of experience lasting more than thirty years in both Hillsborough and Dade Counties. Respondent was rated unacceptable in the areas of classroom management, teacher/student relationship and in a subcategory of assessment techniques. (Petitioner's Exhibit 7). Respondent was rated unacceptable in the area of classroom management based on a large number of disruptive students in her music class and Respondent's inability to control the students' behavior through either verbal or nonverbal strategies. Respondent was rated unsatisfactory in the area of teacher/student relationship based on her failure to demonstrate consistency as concerns student behavior, failing to praise good behavior and reprimand students for disruptive conduct. On another occasion, assistant principal Tynes listened to a musical program Respondent's students were giving over the intercom system. Ms. Tynes rated the program a "total disaster". Ms. Tynes and the principal were "ashamed" of what they heard from Respondent's music class. Respondent demonstrated skills preparation for the program as observed by Ms. Tynes. On May 19, 1983, Respondent was formally observed in the classroom by Katherine Dinkin, who was then principal of Dunbar Elementary School. Following the observation, Respondent was evaluated unacceptable in areas of classroom management, teacher/student relationship, and techniques of instruction. (Petitioner's Exhibit 17). Principal Dinkins observed that Respondent's students were not on task, the classroom was chaotic and the students only responded to directives of the Principal, as a Person of authority. Respondent was rated unacceptable in techniques of instructions based on Ms. Dinkin's observation that students were being taught at levels beyond their ability; class openings and closings were not done appropriately and Respondent failed to develop a plan for the individual needs, interests and abilities of students. Respondent was rated unacceptable in the category of teacher/student relationships based on her failure to demonstrate warmth toward the students and her inability to command respect. During this period in 1983, principal Dinkins prescribed help for Respondent as concerns observing and working with other teachers for guidance. On April 12, 1984, Respondent was again formally observed by principal Dinkins and rated unacceptable in classroom management and techniques of instructions. (Petitioner's Exhibit 21). Respondent was rated unacceptable in the area of classroom management based on her demonstrated inability to keep students on task or to develop strategies to control their behavior. Respondent was rated unacceptable in the area of techniques of instructions based on an inadequately prepared lesson plan and an inability to deliver the instructional components to students. Principal Dinkins observed that the material Respondent attempted to teach was too complicated for the students and she failed to Properly sequence her instructions. Principal Dinkins, who was tendered and received as an expert in the areas of teacher observation and assessment, was unable to observe any continuum of improvement by Respondent over the extended period of Principal Dinkins' supervision. Principal Dinkins opined that Respondent deprived her students of the minimal educational experience in music. During the 1983-84 school year, Respondent again received help from Mr. Buckwalter. As part of this help, Mr. Buckwalter organized small study groups in order to improve instructions throughout the music education department. These groups met on September 28, October 19, November 9 and 30, 1983. Respondent was asked to become part of the study group. The study group was Particularly concerned with focusing on the scope and sequence of curriculum, students' achievement and implementation of certain aspects of the curriculum, particularly as concern level 1 and 2 students. On or about August 30, 1983, Mr. Buckwalter spent the day with Respondent and a new music teacher, Ronald Gold. On or about September 27, 1983, Mr. Buckwalter visited Respondent for approximately 3 and 1/2 hours in which time he visited three of her classes and again attempted to discuss some work with Respondent concerning student management techniques including the use of a seating chart. On or about October 18, 1983, Mr. Buckwalter visited Respondent approximately four hours during which time he visited several classes and observed her using ideas gleaned from the study group. On or about November 7, 1983, Mr. Buckwalter again visited with Respondent for approximately four hours. After the conference, he taught classes with her and implemented the use of instruments to enrich the class lesson as well as the implementation and use of progress charts. On or about December 9, 1983, Mr. Buckwalter visited with Respondent for approximately 3 hours. At this time, Mr. Buckwalter expressed concern in that Respondent was not clearly understanding the intent of the school board curriculum. Respondent was rated unacceptable in the areas of classroom management, techniques of instructions, teacher/students relationships, assessment techniques and professional responsibility during her annual evaluation for the 1984-85 school year. On or about October 29, 1984, Respondent was formally observed in the classroom by assistant principal, Edwardo Martinez. Although Respondent was rated acceptable, this class was not a typical situation but rather a rehearsal of a specific program. On other occasions, assistant principal Martinez had opportunities to walk by Respondent's classroom. He often noted loud noises emanating from her classroom. During these instances, he would enter the room and immediately settle the students down. On March 26, 1985, Respondent was formally observed in the classroom by Maybelline Truesdell, Principal of Dunbar Elementary. Based on this formal observation, Respondent was rated unacceptable in the areas of classroom management, instructional techniques and teacher/student relationships. (Petitioner's Exhibit 2). As a result of the unacceptable evaluation, Respondent was given a prescription form suggesting methods in which she could improve areas in which she was rated unacceptable. (Petitioner's Exhibit 2). Respondent was rated unacceptable in the category of classroom management based on her inability to retain the students attention; her failure to open and close classes appropriately and her general observation of students being off task. Respondent was rated unacceptable in the area of instructional techniques based on the observation that she did not interact verbally with students; students were inappropriately excluded from participating in discussions of the lesson and Respondent did not use instructional methods/materials which were appropriate for the students' learning levels. (TR pages 30-35). Respondent was rated unacceptable in the area of student/teacher relationships based on her improper focusing on a small number of students; inappropriately criticizing a student assistant in the presence of other students, and a failure to use sufficient positive interaction to maintain class control. On may 3, 1985, Respondent was again formally observed by Maybelline Truesdell and rated unacceptable in the areas of classroom management; instructional techniques; student/teacher relationships and assessment techniques. (Petitioner's Exhibit 3). Respondent was rated unacceptable in the area of classroom management as she failed to properly discipline students; failed to maintain classroom control and students were off task. In the area of techniques of instruction, Respondent received an unacceptable rating in one category which remained unremediated pursuant to a prior prescription issued by Ms. Truesdell. Respondent was again rated unacceptable in the area of teacher/student relationship based on her inability to display any of the indicators considered necessary to become acceptable and her continued rejection of students who volunteered or attempted to participate; her failure to involve the entire class by focusing her attention on a small number of students to the exclusion of others and her failure to appropriately address students by their name rather than "you." (TR 39-41). Respondent was rated unacceptable in the area of assessment techniques based on her failure to follow county and state guidelines for assessing students. Specifically, Respondent failed to provide substantial evidence of (documentation) to justify grades assigned to students and her grade books did not indicate if or when she was giving formal quizzes or tests. In addition, there was no letter grade or numerical indication in Respondent's grade books to gauge academic progress. Additionally, there was insufficient documentation in the student folders to back-up student progress or to otherwise substantiate the grades assigned to students. During the 1984-85 school year, Mr. Buckwalter returned to Dunbar Elementary to again assist Respondent. On September 6, 1984, Mr. Buckwalter visited Respondent for approximately three hours during which time he visited a class; co-taught a class and attempted to assist Respondent concerning improvement in areas of student behavior and management. On November 2, 1984, Mr. Buckwalter visited one of Respondent's classes. He thereafter visited Respondent on March 22, 1985 at which time he spent approximately two hours in her classroom. He taught five classes to demonstrate strategies of progressing students from one level to another. He thereafter conferred with Respondent concerning the need to reflect a positive attitude toward students.. On March 29, 1985, Mr. Buckwalter again visited Respondent. Respondent was then using materials suggested by Mr. Buckwalter although she utilized them in a "rote" manner and included too many concepts within a single lesson. On April 18, 1985, Mr. Buckwalter returned to observe Respondent. The students were going over materials that had been taught in past years and the new curriculum was not being taught. On May 23, 1985, Mr. Buckwalter spent four hours with Respondent. They concentrated on the development of lesson plans; planned activities concerning class objectives and stressed the need to remain-on one concept until it was understood by a majority of the class. Respondent's evaluation for the 1985-86 school year was unacceptable in the areas of subject matter knowledge instructional techniques; teacher/student relationships; assessment techniques and Professional responsibility. On October 10, 1985, Respondent was formally observed by assistant principal William J. Kinney. Respondent was rated acceptable in the area of assessment techniques. Mr. Kinney offered certain suggestions to Respondent including the fact that the lesson taught would be more beneficial by more student participation. Respondent was advised of a need to immediately cure problems respecting students who were observed hitting bells with pencils and pens and the need to immediately address problems when students were observed off task. During the school year, Mr. Kinney made numerous informal visits to Respondent's classroom at which times he observed loud noises coming from Respondent's classes, chanting, fighting, furniture pushed into the walls, student misbehavior and other indications that Respondent's classroom management was ineffective. On December 3, 1985, Respondent was officially observed by principal Truesdell and was rated unacceptable in the areas of instructional and assessment techniques. (Petitioner's Exhibit 6). Respondent was made aware of her continuing problems and was provided with an acknowledged receipt of a summary of the conference-for-the-record dated Thursday, December 12, 1985. (Petitioner's Exhibit 7). Additionally, Respondent was given specific instructions in the form of a prescription concerning her grade book and instructed to strictly follow the conduct prescribed. (Petitioner's Exhibit 7). In the opinion of principal Truesdell (received as an expert in the area of teacher assessment teacher evaluation, teacher observation in the role of school principal) Respondent was unacceptable for further employment by the school district, was continuing to demonstrate ineffective classroom management, instructional techniques, assessment techniques and had done so for such an extended period of time that improvement appeared unlikely. Additionally, Ms. Truesdell considered that Respondent was unable to make sufficient competent analysis of students' individual needs and potential in the classroom; failed to ensure and promote the accomplishment of tasks to the proper selection and use of appropriate techniques; failed to establish routine and procedures for the use of materials and physical movements of students in her class; failed to employ the appropriate techniques to correct inappropriate student behavior; failed to demonstrate competence in evaluating learning and goal achievement by her students and failed to demonstrate appropriate interpersonal skills required of a teacher to maintain discipline and effectively teach in a classroom environment. On February 7, 1986, Respondent was officially observed in her class by Marilyn Von Seggern, music supervisor for Dade County and by Ms. McCalla, assistant principal at Dunbar, under the provision of the TADS program. (Petitioner's Exhibit 23). Following that observation, Respondent was rated unacceptable in the areas of subject matter knowledge, instructional techniques, assessment techniques and teacher/student relationships. In the Professional opinion of Marilyn Von Seggern, received herein as an expert in the areas of music education, teacher observation and assessment, Respondent was depriving students of the minimum educational experience and had serious problems concerning her ability to communicate and relate to students respecting the music curriculum. On January 16, 1986, Respondent was formally observed in her classroom by Dunbar's assistant principal Carolyn Louise McCalla, and was rated unacceptable in the areas of classroom management, techniques of instruction and assessment techniques. (Petitioner's Exhibit 24). Based on Mr. Buckwalter's repeated observation of Respondent's classroom and teaching techniques, Mr. Buckwalter opined that Respondent's students were not receiving the minimum education required by the Dade County School System as concerns the curriculum for music. As example, on one occasion Mr. Buckwalter observed Respondent presenting an organized lesson to students which was quite successful and upon his return approximately five minutes later, Mr. Buckwalter observed that Respondent was not teaching the new successful lesson but had instead reverted back to an old lesson and her students were observed inattentive and generally off task. (TR pages 250-254). On March 26, 1986, Respondent was having difficulty maintaining her students' attention to the point that the students were out of control. While Respondent was attempting to stop a certain student from chanting and beating on the desk, Respondent tried to restrain the student and in so doing, Respondent broke her watch band and scratched the student on her face. The student required hospitalization and although the injury was deemed an accident, Respondent's lack of classroom control and management played a major part in causing the incident. Pursuant to a request by the School Board, Respondent, on April 30, 1986, was evaluated by psychiatrist, Gail D. Wainger. Dr. Wainger took a medical history from Respondent which included Respondent's revelation of previous psychiatrist treatment. Dr. Wainger observed that Respondent had a very flattened, blunted affect with little emotional expression. She related that this was a sign of a patient who was recovering from a major psychiatric episode. Additionally, Respondent showed difficulty recalling recent events. Dr. Wainger diagnosed Respondent as having chronic residual schizophrenia with a possible personality disorder including impulsive and avoidance features. Dr. Wainger opined that a person with such diagnosis would have difficulty being an authority figure and that this would be especially Problematic for students who needed positive reinforcement. On April 28, 1986, Respondent attended a conference-for-the-record with the school board's administrative staff. A past history of performance and evaluations was reviewed. Additionally, the investigative report concerning the injury of the student which occurred March 26, 1986 was also reviewed. Respondent was informed that the matter would be referred to the School Board for possible disciplinary action. (Petitioner's Exhibit 31). On May 21, 1986, the School Board took action to suspend Respondent's employment and initiated the instant dismissal proceeding against her. (Petitioner's Exhibit 32). For the 1985-86 school year, Respondent's annual evaluation indicated that she was rated unacceptable in five of seven categories and was not recommended for re-employment. (Petitioner's Exhibit 13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, School Board of Dade County, enter a Final Order sustaining the suspension, without pay, of Respondent, Gloria E. Walker and dismissing Respondent, Gloria E. Walker as a teacher in the Dade County Public Schools. That the Petitioner, Ralph D. Turlington, as Commissioner of Education, entered a Final Order finding Respondent guilty of incompetency and incapacity. It is further Recommended that the Education Practices Commission enter a Final Order suspending Respondent's Florida Teacher's Certificate No. 294140, issued by the Department of Education, State of Florida, for a period of three years based on incompetence and incapacity. DONE and ENTERED this 2nd day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1987.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
Findings Of Fact At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect. Ms. Mitchell was licensed to teach in early childhood education. At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board. Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965. During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida. Robert Strauss was the principal at Livingston during the 1985-1986 school year. Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years. Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year. During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions. On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance. John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year. Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers. In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell. Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members. Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell. Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher. Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher. The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year. The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance. Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year. Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory. Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year. Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year. William Permenter was the principal at R. L. Brown. In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year. During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance. In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory. On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987. In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter. During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell. Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell. No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations. Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations. In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions. Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed. During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union. Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre. The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness. Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors; (b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away. Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class; (i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter. Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions. Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems. Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day. Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year. Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years. The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations. Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes. Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the Duval County public school system. DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 46. 4 38 5 39 and 41. 6 40-41. 7 6 and 9. 8 17. 9 Hereby accepted. 10-11 20. 12 11. 13 18. 14-15 21. 16-17 Irrelevant. 18 11. 19 17. 20 13. 21 12. 22 14. 23 13. 24 42. Hereby accepted. See 40. 27 16. 28 43. 29 42. 30 34. 31 15. 32 See 39. 33 19. 34 22. 35 23. 36 24-25. 37 18, 38 Hereby accepted. 39 26. 40 28. 41-42 Irrelevant. 43 45. 44 27. 45 Hereby accepted. 46-47 30. 48-49 Hereby accepted. 50 31. 51 30. 52 32. 53 35. 54 Hereby accepted. 55 32 and 37. 56 33. 57 See 40. 58-61 Hereby accepted. 62 44. 63 36. Hereby accepted. Irrelevant. 66 32 and 37. 67 36. 68-69 Hereby accepted. 70 45. 71 Cumulative. 72 47. 73 48. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 46. 4 5. 5 6. 6 10. 7-8 21. Hereby accepted. Not supported by the weight of the evidence. 11-13 7. 14 Not supported by the weight of the evidence. 15-16 Hereby accepted. 17 17. 18 24. 19 23. Irrelevant. See 25. 22 27. 23 29. 24-29 Not supported by the weight of the evidence or irrelevant. 30 8. 31-43 Not supported by the weight of the evidence or irrelevant. 44 Hereby accepted. 45 4. 46 8. 47 Hereby accepted. 48 36. 49-52 Not supported by the weight of the evidence or irrelevant. COPIES FURNISHED: Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Kenneth Vickers, Esquire Suite 1 437 East Monroe Street Jacksonville, Florida 32202 Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207
The Issue The issues are whether Respondent, Cynthia A. Foy (Respondent), committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(b), (c), (f), and (i), Florida Statutes (2003),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e) and (5)(d); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made: Respondent, Cynthia Foy, holds Florida Educator's Certificate No. 468641, covering the areas of early childhood education, elementary education, and English to speakers of other languages, which is valid through June 30, 2007. Respondent had been employed with the Hillsborough County School Board 17 years as of the 2002-2003 school term. At all times pertinent hereto, Respondent was employed as a first-grade teacher at Colson Elementary School (Colson) in the Hillsborough County School District (School District). Respondent worked as a teacher at Colson for about five years, beginning the 1998-1999 school year. During her employment in the School District, including her employment at Colson, Respondent never had any disciplinary action taken against her. From 1986 through 1996, Respondent consistently received satisfactory ratings on her annual teacher evaluations, except for one school year when she had three deaths in her family, including the sudden death of her father and of her 38-year-old brother. Respondent's Absences Respondent was absent from work 22 days during the 1998-1999 school year, her first year at Colson. Some of the absences were related to Respondent's health issues. However, most of Respondent's absences were related to her mother's illness. During the 1998-1999 school year, Respondent's mother was confined to a nursing home and had become very ill and frail. Due to her mother's failing health, Respondent wanted to be with her mother, to watch and take care of her. Also, even though Respondent's mother was in a nursing home, Respondent was responsible for taking her mother to her own doctors to make sure she got the proper care. During the 1999-2000 school year, Respondent was absent from work 13.5 days. Respondent's mother died during that school year. As a result, Respondent missed 13.5 days to deal with matters related to her mother's death. During the 2000-2001 and 2001-2002 school years, Respondent was absent from school for 19.45 and 16 days, respectively. These absences were because of Respondent's own health issues. During these school years, Respondent was under an extreme amount of stress due to what she perceived to be a hostile work environment at school. Mary Clark, principal of Colson, was concerned about Respondent's absences and specifically noted this concern on all of Respondent's evaluations, which are at issue in this proceeding. The reasons for Respondent's absences were not disputed, and there is no assertion that the absences were unauthorized. However, Mrs. Clark believed that Respondent's absences resulted in the lack of continuity of instruction and negatively impacted the learning of students in Respondent's first-grade classes. Mrs. Clark testified that because of their concern about their children's progress, some parents requested that their children be transferred from Respondent's class to another first-grade class. Records of such requests and actual transfers were not presented at hearing. However, Mrs. Clark recalled that at least one student had been transferred from Respondent's class. Whether the only reason for the transfer was Respondent's absences is unclear. Notwithstanding Mrs. Clark's concern and belief that Respondent's absences had a negative impact on the students in her class, no basis for this concern was established. To the contrary, during Respondent's tenure at Colson, her students consistently performed well academically as reflected by their scores on the Stanford Achievement Test, a nationally normed test. At all times relevant to this proceeding, the Stanford Achievement Test was used by the School District to assess first-grade students' achievement in the areas of mathematics and reading. At all times relevant to this proceeding, the test was administered to first-grade students at Colson in March or April of each school year. In March 2000, there were four first-grade classes at Colson. Of those four classes, Respondent's students made the highest scores in both the reading section and the math section of the Stanford Achievement Test. The results of the Stanford Achievement Test administered in April 2001, reflect that of the four first-grade classes, the students in Respondent's class made significantly higher scores in both reading and mathematics than the students in the other three first-grade classes. As of April 2002, Colson had six first-grade classes. Of the six first-grade classes, Respondent's class ranked first on the reading section and second on the mathematics section of the Stanford Achievement Test. Respondent's Annual Performance Evaluations The School District utilizes the Classroom Certificated Instructional Effectiveness Evaluation Form (Evaluation Form), which has been approved by the Hillsborough County School Board (School Board) as the instrument by which its teachers are evaluated. Typically, tenured teachers with professional service contracts are evaluated annually, but if the tenured teacher is experiencing difficulties in the classroom, the school administrator may evaluate the teacher more than once a year. At all times relevant to this proceeding, the Evaluation Form consisted of the following categories in which teachers are evaluated: Category I, Planning and Preparation, which includes six subsections or areas; Category II, Professional Behaviors, which includes 12 areas; Category III, Techniques of Instruction, which includes 15 areas; Category IV, Classroom Management, which includes seven areas; and Category V, Instructional Effectiveness, which includes one area. The Evaluation Form requires that the teacher's performance in each area be rated as "satisfactory," "needs improvement," or "unsatisfactory." The highest possible rating is "satisfactory," and the lowest rating is "unsatisfactory." In addition to the areas under the various categories in which teachers are rated, the evaluation requires that the teacher be given an "overall rating" of "satisfactory" or "unsatisfactory." As principal of Colson, one of Mrs. Clark's responsibilities was to supervise and evaluate the teachers at the school. Consistent with that responsibility, Mrs. Clark supervised and evaluated Respondent. Mrs. Clark evaluated Respondent once in the 1998-1999, 1999-2000, and 2000-2001 school years, usually in April. During the 2001-2002 school year, Mrs. Clark evaluated Respondent twice, in December 2001 and in March 2002. Mrs. Clark decided to evaluate Respondent twice in the 2001-2002 school year. Given Respondent's status as a tenured teacher and Mrs. Clark's "concerns over the years with her performance," by evaluating Respondent in the fall, Mrs. Clark would be able to give Respondent notice of the areas in which she still needed to improve. During the period between the fall evaluation and the spring evaluation, Respondent would have an opportunity to work to improve in those areas.2/ The ratings assigned to Respondent's performance on each of the Evaluation Forms are based on data that is collected by Mrs. Clark through her observations and while "walking into [the] classroom on a regular basis." The Administrative Complaint alleged that Respondent's evaluations for the 1998-1999 through the 2001-2002 school years indicated that she needed to improve in specified areas under the following categories: Category II, Professional Behavior; Category III, Techniques of Instruction; and Category IV, Classroom Management.3/ Although Respondent worked at Colson during the 2002-2003 School year, there is no evidence that she was evaluated that year as required by law. If an evaluation was completed for that school year, the Administrative Complaint does not allege that the evaluation indicated any areas in which Respondent needed to improve. Professional Behavior The Administrative Complaint alleges that Respondent received several evaluations from 1999 through 2002 that indicated she needed to improve in the following areas under the Professional Behavior category: 1) observes confidentiality related to students; 2) works cooperatively and supportively with school staff; and 3) responds reasonably to and acting appropriately to constructive criticism. With regard to the first area of concern, "observes confidentiality related to students," none of Respondent’s evaluations for the relevant time period, 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, indicated that she needed to improve in that area. In fact, contrary to the allegations in the Administrative Complaint, all five of Respondent's evaluations for that time period indicate that her performance in that area was rated as "satisfactory." The second area under Professional Behaviors in which it is alleged that Respondent's evaluations indicated she needed to improve is "works cooperatively and supportively with school staff." Respondent's evaluations for her first three school years at Colson--1998-1999, 1999-2000 and 2000-2001--reflect that her performance in the area, "works cooperatively with school staff," was "satisfactory." However, after receiving "satisfactory" ratings in this area for three consecutive years, for the first time, Respondent's evaluation for the 2001-2002 school year indicated that Respondent needed to improve in this area.4/ The evaluations gave no reason for the "needs improvement" rating in the area, "works cooperatively with school staff," on Respondent's December 2001 and April 2002 evaluations. Although no specific basis for the rating is given on the evaluation, it is noted that these evaluations coincide with the area supervisor's observations. The third area under the Professional Behavior category in which it is alleged that Respondent received several evaluations that indicated she needed to improve is the area, "responds reasonably to and acts appropriately upon constructive criticism." Contrary to this allegation, none of Respondent's evaluations indicated that she needed to improve in this area. Rather, Respondent's performance in the area, "responds reasonably to and acts appropriately upon constructive criticism," was rated as "satisfactory" on all five of the evaluations she received during the relevant time period. Techniques of Instruction The Administrative Complaint alleges that Respondent received several evaluations that indicated she needed to improve in the following areas under the Technique of Instruction category: (1) uses instructional time efficiently; presents subject matter effectively; and (3) uses praise appropriately. Respondent's evaluations for the 1998-1999, 2000-2001, and 2001-2002 school years indicated that Respondent needed to improve in the area, "uses instructional time efficiently." As a possible rationale for the rating assigned in the 1998-1999 evaluation, Mrs. Clark wrote on the evaluation, "I am concerned about the slow pace of her lesson as well as the pacing through reading." The evaluations for the 2000-2001 and the 2001-2002 school years gave no rationale for the "needs improvement" rating in the area, "uses instructional time efficiently." Additionally, there is no indication that Mrs. Clark told Respondent the basis of the rating or offered any recommendations as to how Respondent could improve in this area. Upon Respondent's receiving the December 2001 and the March 2002 evaluations, she requested, in writing, a detailed written explanation of the basis for each of the "needs improvement" ratings, which included the area, "uses instructional time efficiently." There is no evidence that Mrs. Clark ever provided the requested explanation. Additionally, the evidence does not establish a basis for the "needs improvement" rating in this area. The next area at issue under the Techniques of Instruction category is, "presents subject matter effectively." Respondent's evaluations for the 1999-2000 and the 2000-2001 school years indicate that Respondent needed to improve in this area. However, neither the evaluation, nor any evidence at the hearing, offered or established a basis for this rating. On Respondent's evaluations for the 1998-1999 school year, and most recently for the 2001-2002 school year, her performance in the area, "presents subject matter effectively," was rated as "satisfactory." Clearly, the "satisfactory" ratings on the December 2001 and March 2002 evaluations, which were for the 2001-2002 school year, marked an improvement over Respondent's ratings in that category for the immediate prior two school years. Finally, it is alleged that the third area under the Techniques of Instruction category in which Respondent's evaluations indicated she needed to improve is, "uses praise appropriately." Respondent's evaluation for 1998-1999, her first year at Colson, indicated that she needed to improve in this area. The next three school years, however, Respondent's performance in this area improved to "satisfactory," as reflected by the four evaluations for the 1999-2000, 2000-2001, and 2001-2002 school years. Classroom Management Under the category, Classroom Management, it is alleged that Respondent's evaluations indicated that she needed to improve in the area, "enhances and maintains students' self- esteem." On Respondent's evaluations for the 1998-1999 and the 1999-2000 school years, her first two years at Colson, Respondent's performance in the area, "enhances and maintains students' self-esteem," was rated "satisfactory." Respondent's evaluation for the 2000-2001 school year indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. It is specifically found that the Administrative Complaint makes no allegations regarding the "unsatisfactory" rating. Accordingly, except for limited purposes, issues related to that rating will not be addressed. Respondent's performance in the area, "enhancing and maintaining students' self-esteem," improved in the 2001-2002 school year from "unsatisfactory" to "needs improvement," as reflected in both her December 2001 and April 2002 evaluations. Instructional Effectiveness The Administrative Complaint does not allege that Respondent's evaluations reflect that she needs to improve in the Instructional Effectiveness category. However, in order to present a more complete picture of Respondent's performance, as rated on her evaluations, this category and Respondent's ratings thereunder are considered. The Instructional Effectiveness category includes only one area, "promotes academic learning which results in improved student performance."5/ This area is concerned with and assesses whether actual learning is taking place as a result of the teacher's instruction. 39. For the 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, Respondent's performance in the area, "promotes academic learning which results in improved student performance," is rated as "satisfactory." Overall Rating Category Respondent's "overall rating" in all five of her evaluations for the 1998-1999, 1999-2000, 2000-2001, and 2001- 2002 was "satisfactory." 6/ Transfer of Student to Respondent's Class (January 2001) In January 2001, a student, F.R., was transferred to Respondent's class from another first grade class because of his behavioral problems. When such a transfer takes place, the teacher to whom the student is being transferred is given prior notice that the student is being assigned to her class. In this instance, that was not done. Respondent was not informed in advance that F.R. was being transferred to her class. On the first day the students returned to school from winter break, F.R. just "showed up" in Respondent's class. Later, Respondent was told that the child was transferred to her class because he was having peer conflict problems, and, as a result, he was acting out. Respondent was told that the student’s acting out behavior included such things as spitting on children, stabbing children with forks, knocking things off the children's desks, and having outbursts. Respondent thought this was a new chance for the child, and she attempted to make the new class assignment work. For example, rather than isolate the child, as his former teacher had recommended, Respondent assigned F.R. to a seat between two very well-behaved little girls, who she knew would never say anything mean to him. Despite Respondent's efforts to work with F.R., he exhibited lashing out and angry behaviors. Due to F.R.'s exhibiting lashing out behavior, Respondent was concerned for the safety of the other students in the class. In January or early February 2001, Respondent shared her concern with Mrs. Clark and asked that F.R. be removed from her class. Mrs. Clark responded that F.R. was just a little boy and said, "Let's see how he does." No offers for assistance were made, and Respondent felt that her request was simply ignored. Later, in January or early February 2001, as Respondent's class lined up and walked to the lunchroom, F.R. deliberately "high stepped and slid on the heels" of the child in front of him. When Respondent asked F.R. to stop, he just laughed, looked at Respondent, and repeated the behavior. Respondent told F.R. to stand out on the side of the line and walk with her. At first he complied, but then he started to get back in the line. Respondent then told F.R., "You're walking with me." After F.R. ignored Respondent, she took his hand so that he could walk with her. F.R. then yanked and pulled Respondent's fingers back, kicked Respondent "really hard" in the upper ankle, and "took off running." Respondent reported the incident to Mrs. Clark and the vice-principal and completed an incident report, reporting her injury and indicating her belief that F.R.'s behavior described in paragraph 44 constituted an assault/battery. After the incident, Respondent again asked Mrs. Clark to transfer F.R. from her class. Mrs. Clark never responded to Respondent's request. In fact, Mrs. Clark never talked to Respondent about the incident. Some time after the February 21, 2001, observation discussed below, there was a second incident where F.R. was physically aggressive toward Respondent. F.R. ran out of the lunchroom to return to the classroom to get the check he had forgotten. Concerned about his past behavior of destroying and "messing up" the other children's belongings, Respondent went to get F.R. Before Respondent could get to the classroom, F.R. had gotten the check and was running back to the lunchroom and toward Respondent. Respondent stuck her arm out to stop him and he continued running around her. Once in the lunchroom, Respondent "pulled" or "grabbed" the check from F.R.'s hand and asked the aides in the lunchroom to call Mrs. Clark. F.R. then seemed to explode, and he began punching Respondent with his fists and biting her. By the time the assistant principal got to the lunchroom, four students had pulled F.R. off Respondent, and Respondent was holding F.R.'s hand. When the vice-principal arrived, she did not discuss the incident with Respondent, but began screaming and told Respondent, "Go, get out of here, leave!" Following the lunchroom incident, Respondent filed another assault report and, for the third time, asked Mrs. Clark to transfer F.R. from her class. After there was no response to her verbal request, a union representative advised Respondent to make the request in writing. Initially, Mrs. Clark denied the request because it was not on the proper form, but once Respondent made the request on the appropriate form, F.R. was transferred from her class. Prior to the requests related to F.R., Respondent has never requested that a student be transferred from her class. Observations of Area Supervisor Ms. Daryl Saunders, an area supervisor for the School District, went to Respondent's classroom on five different occasions between February 21, 2001, and March 21, 2002, twice during the 2000-2001 school year, and three times during the 2001-2002 school year, to conduct observations. On a visit in February 2002, Ms. Saunders did not conduct an observation. With the exception of the first visit to Respondent's classroom, all of Ms. Saunders' visits were for the purpose of observing Respondent. Of the four times Ms. Saunders went to observe Respondent, she actually conducted observations three times. First Observation (February 21, 2001) Ms. Saunders' first visit to Respondent's classroom was on February 21, 2001. At the request of Mrs. Clark, Ms. Saunders went to Respondent's classroom to observe a student, F.R., who had been displaying inappropriate behavior in class and is described above.7/ During the time Ms. Saunders observed F.R., he did not have any outbursts, engage in any physically aggressive behavior, or display any disruptive or inappropriate behaviors. Ms. Saunders noted that the student delayed starting his assignment and took breaks between work, but did not bother any other student. Based on her observation of F.R. and the manner in which Respondent communicated with him, Ms. Saunders wrote in the summary letter to Mrs. Clark, "I believe F.R. is trying to survive in a room where he feels he is not valued." While Ms. Saunders was observing F.R., she also observed Respondent teaching and interacting with the students. Ms. Saunders was particularly concerned with Respondent's frequent verbal reprimands that were audible to the entire class. During the observation, Ms. Saunders also noticed that Respondent seemed to be easily frustrated and that when communicating with students, her voice vacillated between a friendly tone to an aggressive tone. Ms. Saunders expressed this and other concerns, not relevant to this proceeding, to Mrs. Clark in a letter dated February 22, 2001. According to the letter, a verbal reprimand to a particular student in front of the entire class is "damaging to [a] student's self-esteem." Ms. Saunders further noted that "considering the environment, I was surprised there were no behavioral issues while I was present." In the February 22, 2001, letter to Mrs. Clark, Ms. Saunders recommended that "we provide [Respondent] with some assistance so that the classroom environment is more conducive for instruction and learning." As a means of supporting Respondent in this effort, Ms. Saunders recommended that Mrs. Clark "have [Respondent] take two courses through the staff development office." The two classes that Ms. Saunders recommended were Cooperative Discipline and Effective Teaching Strategies. Finally, Ms. Saunders' letter stated, "the Language Arts Frameworks document should be reviewed with [Respondent]." There is no indication that Mrs. Clark discussed these recommendations. Second Observation (May 7, 2001) At Mrs. Clark's request, Ms. Saunders visited Respondent's classroom on May 7, 2001, to observe Respondent's teaching practices. This was about two weeks after Respondent received her evaluation for the 2000-2001 school year, which had rated her performance as unsatisfactory in the area of "enhancing and maintaining student's self-esteem." Pursuant to an earlier suggestion by Ms. Saunders, Respondent allowed herself to be videotaped in order that she could better critique her own behavior in the classroom. To implement this recommendation, the school's media specialist was in the classroom to set up the video equipment on the day of Ms. Saunders' observation. Soon after Ms. Saunders arrived, the media specialist asked Respondent if she should put the tape in the video recorder. Respondent answered, "Please, I don't want to be accused of using three minutes of my time up." Ms. Saunders believed that Respondent's tone of voice was "unprofessional" and that the comment was directed at her. During the May 7, 2001, observation, a student who was speaking to other students in a group had her back to them. Respondent's voice "became aggravated" as she told the student to turn around. Respondent placed her hands on the student's shoulders and physically turned her, but did not do so forcibly. During the May 7, 2001, observation, Ms. Saunders noted improvement in Respondent's communication with her students. In her written summary of the observation dated May 16, 2001, Ms. Saunders wrote: Based on that first encounter [February 21, 2001], I would say my greatest concern was how you communicated with both students and adults. However, this time your demeanor in front of the children was quite different than when I last observed in your classroom. I believe having the video camera present helped to keep you focused on appropriate communication with the children. I was pleased to hear more of a pleasant tone. Ms. Saunders' summary also stated that she counted four times when Respondent appeared to become frustrated and her tone of voice changed to a negative one. Ms. Saunders' summary of the May 7, 2001, observation included the following recommendations: One way to support and assist you regarding classroom environment, instruction and planning would be to have someone review with you, the six domains from the Florida Performance Measurement System. This information is based on research and would be beneficial to again cover. In addition, I recommend that you attend training provided by the elementary education department specifically in the area of writing. Enrollment can be done on-line. . . . There are many courses offered this summer. The Language Arts Frameworks document should also be reviewed. This will provide information about our district's curriculum and the writer's workshop model. Other staff development offerings related to classroom management are offered periodically through the staff development office. I suggest you take one of their courses to assist you with classroom management. You can register on line any time. . . . In the May 16, 2001, summary, Ms. Saunders notified Respondent that she planned to observe Respondent's classroom again soon. Additionally, Ms. Saunders indicated that she expected to see "appropriate and timely instruction and activities based on student need and planned from grade level expectations." Third Observation (December 6, 2001) Ms. Saunders conducted the third observation on December 6, 2001, seven months after the previous observation. Ms. Saunders summarized her observations in a letter dated December 17, 2001. In the letter, Ms. Saunders advised Respondent, for the first time, that the December 6, 2001, observation was part of a plan to assist Respondent with teaching practices. On December 6, 2001, Ms. Saunders arrived at Respondent's classroom at 8:30 a.m. and stayed until 9:10 a.m., when the children left the room for an activity. During the 40-minute observation, Ms. Saunders heard Respondent communicating with students and observed her conducting a review of telling time. Ms. Saunders was complimentary of Respondent's review of telling time. In the written summary to Respondent, Ms. Saunders wrote: You try hard to provide ways for students to remember abstract concepts. You use pneumonic devices, short stories, rhymes and other ways to assist with memorization. By calling the numbers bases and relating the time to the name of the base they passed, students more accurately read time when the short hand falls somewhere between two numbers. This seemed quite effective. Ms. Saunders observed an incident which she perceived to be negative. There was a student who was off task. Respondent directed her attention to the student and asked the student, "Would your mother [or family] be proud of you?" Ms. Saunders believed that when Respondent made this statement, her voice "sounded with disapproval." Ms. Saunders suggested that in the situation described in paragraph 66, Respondent should have "encouraged" proper behavior by asking the student a question that would have him participate so that he becomes on task rather than off task. In another situation, Ms. Saunders observed Respondent interact appropriately and effectively with a student she was reprimanding. In that case, Respondent asked the student, "What time is it?" Before that student could answer, another student shouted out the answer. Recalling Respondent's positive response in that situation, Ms. Saunders stated the following in the December 17, 2001, summary: A boy shouted out the answer and you began to reprimand him. You began to speak, stopped yourself, and continued with this carefully crafted sentence. "Tell me the rule about calling out." It was nice to see you stop yourself in mid-stream, rethink a way to correct this misconduct while still preserving the child's dignity. Based on the December 6, 2001, observation, Ms. Saunders had two areas of concern, only one of which is relevant in this case. That area relates to Respondent's "appropriate use of instructional time." Ms. Saunders' concern is stated in the summary as follows: In my opinion, a second area of concern relates to planning and appropriate use of instructional time. I entered your room at 8:30 and the instructional day begins at 8:00 a.m. Instruction in your room did not begin until 8:44 and the fifteen minutes suggested for calendar math was stretched to 21 minutes. I suggest you utilize time more wisely by beginning calendar math immediately after announcements. Then spend the rest of the morning on shared, guided and independent reading when youngsters are fresh and ready to learn. Beginning instruction nearly 45 minutes after the day begins will allow you to cover all the curriculum. Although the "instructional day," to the extent that term refers to Respondent's teaching a lesson to the class, did not begin at 8:00 a.m., or soon thereafter, there was a reasonable explanation for the delay. First, three students were assigned to Respondent's class that day because their regular teacher was absent. Prior to beginning instruction, Respondent met with those students, asked them their names, assigned them desks, and explained her classroom management system. Respondent's classroom management system involved giving each student a certain number of clothes pins at the beginning of the day. During the school day, the students could lose and/or earn clothes pins, depending on their conduct. The second reason for the delay in beginning the instructional day was that several students in Respondent's class had been allowed to go to the media center to "Santa's Book Fair." As Ms. Saunders noted in her written summary, several of Respondent's students did not return to the classroom from the book fair until 8:36 a.m. In light of the foregoing circumstances, it was reasonable that Respondent did not begin the "instructional day" at 8:00 a.m., or immediately after announcements were made. Admittedly, Ms. Saunders did not know what, if any, instructions or directions Respondent gave to students prior to 8:30 a.m. However, when Ms. Saunders entered Respondent's classroom, the students were actively engaged in various activities. For example, one student was working on math worksheets. Another student was at the computer taking an Accelerated Reading test. Respondent was working with the student at the computer. In addition to Ms. Saunders' concern that the instructional day did not begin until 8:44 a.m., she believed that Respondent spent too much time teaching the "calendar math" activity. Respondent began the activity at 8:44 a.m., and completed it at 9:05 a.m. Even though Ms. Saunders complimented Respondent on her presentation of the activity, as discussed in paragraph 65, she criticized Respondent for spending too much time teaching or reviewing the lesson. According to Ms. Saunders, the "suggested" time for "calendar math" was 15 minutes, but Respondent "stretched" the activity to 21 minutes, which was six minutes longer than the "suggested" time. Ms. Saunders offered no explanation of why or how Respondent's extending the calendar math activity by six minutes was not an "appropriate use of instructional time." At 9:10, a.m., five minutes after the calendar math lesson, Respondent's students had to leave the classroom to attend a health presentation. The five minutes between the end of "calendar math" and when the children left the classroom for the health presentation, allowed time for the children to return to their seats and for Respondent to pass out name tags to the students and have them line up before leaving the room. Ms. Saunders offered no suggestions as to a more appropriate or acceptable way Respondent could or should have used the extra six minutes that Respondent used teaching the calendar math activity. Ms. Saunders summarized the December 6, 2001, observation and made recommendations in a letter dated December 17, 2001. Based on Ms. Saunders' concerns about Respondent's teaching practices, Ms. Saunders recommended that Respondent "have someone review with [her] the six domains from the Florida Performance Measurement System." Also, she recommended that Respondent take training provided by the elementary education department and a classroom management course, both of which were offered "periodically" through the staff development office. Attempted Observation (February 2001) On an unspecified day in February 2002, Ms. Saunders went to Respondent's classroom to conduct her fourth observation. After Ms. Saunders entered the classroom, Respondent told her that she had no notice of the observation. Ms. Saunders then advised Respondent that Mrs. Clark knew that Ms. Saunders would be observing Respondent's class that day, but that "neither of us [Saunders nor Clark] chose to make you [Respondent] aware of the visitation." Respondent espoused the view that she should have received notice of the observation. Ms. Saunders disputed Respondent's view that she should have been given notice and indicated that the observation was part of the assistance plan laid out in May 2001. Respondent replied that an assistance plan could only last 90 days and, thus, this observation could not be part of any such plan. Ms. Saunders then asserted that she could do an observation any time as part of her normal duties. Respondent disagreed and requested that Ms. Saunders provide her with a written explanation of the reason why Ms. Saunders was visiting the class, the instrument she would be using, what she would be observing, and how long she would be staying. As the verbal interchange proceeded, Ms. Saunders thought that Respondent's voice became more aggressive and that she was also getting upset. Because Respondent's students were in the classroom, Ms. Saunders decided to leave the classroom and return at another time. Although students were in the classroom during the verbal exchange concerning whether Ms. Saunders' visit was authorized, there is no evidence that the students heard the conversation. Fourth Observation (March 21, 2002) On March 21, 2002, Ms. Saunders conducted an observation in Respondent's classroom. Upon Ms. Saunders' entering the room, Respondent advised her that she had no notice that Ms. Saunders was coming to her class. Respondent also told Ms. Saunders that the students were taking a school-wide writing assessment. Ms. Saunders acknowledged that, but still indicated that she would be seated and conduct an observation. Respondent then approached Ms. Saunders and asked why she was in the class, what instrument she was using, and what she was observing. Ms. Saunders reiterated her prior position that she was there as part of the assistance plan and that she would be taking anecdotal notes. Respondent then asserted her earlier position, that an assistance plan was only for 90 days. Consistent with Ms. Saunders' previous recommendation that Respondent tape herself in class as a way to critique herself, Respondent told Ms. Saunders and the class that she was turning on the tape recorder. Ms. Saunders began the observation at or about 8:58 a.m., and ended it at 9:16 a.m. In all, the observation lasted only about 18 minutes. During most of that time, Respondent's students were completing a school-wide writing assessment. As students finished the writing assessment, Respondent gave them books to read silently, while the other children continued to work on the writing assessment. Ms. Saunders summarized the March 21, 2002, observation in a letter dated April 18, 2002. Due to the duration of the observation, 18 minutes, and the fact that the students were taking a writing assessment, Ms. Saunders reported only a few specific observations. None of those observations concerned or were related to Respondent's teaching techniques or classroom management.8/ In the April 18, 2002, letter, Ms. Saunders summarized the March 21, 2002, observation and made conclusions. In the letter, Ms. Saunders stated she continued to see the "same behaviors" from Respondent. She further stated, Each time I visit your classroom I continue to see the same behaviors from you. Though discussion has occurred regarding ineffective practices, visitation were made to a number of other classrooms at Yates Elementary, suggestions regarding inservice courses have been made, yet your practices have not changed. I continue to see an emphasis on students being silent unless called upon. I continue to hear you speak gruffly to students. I continue to see you punish students for very minor infractions like wiggling or whispering. I continue to see you isolate students from the group. I continue to see you go over concepts, like vocabulary orally in order for students to memorize things rotely. I continue to see calendar math exceed the 15 minutes it is intended to occupy of the mathematics instructional time. I continue to see only one student engaged at a time. It was the intention of the assistance plan to have you reevaluate some of your ineffective practices and work to make some changes. I have yet to witness any of that nor do I think you are even trying to make strides toward improvement. Despite her recitation of areas in which Respondent still needed to improve, Ms. Saunders offered no recommendations in the April 18, 2002, summary letter to assist Respondent. However, Ms. Saunders stated that she "plan[ned] to make an unannounced observation in [Respondent's] class again soon," but she never did. The conclusions in Ms. Saunders' April 18, 2002, letter are inconsistent with some of her earlier observations discussed in paragraphs 59, 65, and 68 above. Moreover, there was no connection between the conclusion Ms. Saunders articulated in the summary letter and what she observed on March 21, 2002. Area Supervisor's Criticism of Respondent's Reprimand Method Ms. Saunders was critical of the way Respondent reprimanded students. During Ms. Saunders' observations, Respondent sometimes would call the name of the child who was being reprimanded and tell him what he should or should not be doing. At the hearing, Ms. Saunders testified to maintain order in the classroom, Respondent should have used "public praise" and "private criticism." Notwithstanding this position, Ms. Saunders admitted that this method or principle is not an established policy and procedure of the School District. While Ms. Saunders testified that the "public praise, private criticism" principle is simply an "educational belief that many people subscribe to," she acknowledged that other models exist. There was no evidence presented at the hearing that Ms. Saunders ever specifically discussed the "public praise, private criticism" philosophy that she believed Respondent should have used in the classroom. Observations of the School Principal Mrs. Clark frequently observed Respondent in the classroom as part of her routine of visiting all the classrooms at Colson. During her observation of Respondent, Mrs. Clark saw and heard Respondent sometimes use a "harsh desist" in reprimanding students. According to Mrs. Clark, the term "harsh desist" means "harshly reprimanding a child to stop doing something." Mrs. Clark described an example of a "harsh desist" by Respondent's saying, "Shhhh" to the class in a loud way, and talking to children in a way that was "derogatory." Mrs. Clark believed that the children were impacted by the way Respondent spoke to them. She based this belief on the expressions she saw on some of the children's faces. Mrs. Clark testified, "In some instances, they [the students] would cringe." Mrs. Clark testified that she talked to Respondent about her "harsh desist," but Respondent did not change this classroom management method. These discussions were not documented, and no reference to this issue was ever noted on Respondent's evaluations. The record fails to establish when or how often Mrs. Clark observed Respondent engaging in a "harsh desist," to whom any particular "harsh desist" was directed, and if and how the "harsh desist" affected the student. Mrs. Clark testified that she observed situations in which she observed Respondent talk to students in a derogatory manner. In one instance, the student referred to in paragraph 41 above, who had been transferred to Respondent's class because of behavioral problems he was having in another class, left Respondent's classroom without permission and was returned to the room by Mrs. Clark. The student told Mrs. Clark that he had left the room to look for a pencil or scissors. Mrs. Clark asked Respondent if the student could borrow one from another student or if she would give him the tool that he needed. Respondent said she would not give him the particular tool. Respondent continued, "He breaks them all the time. He doesn't deserve them." Although students were in the classroom when Respondent made the comments, there is no evidence that they heard the comments. The other incident in which Mrs. Clark described Respondent as using derogatory language when talking to a student involved T.B., a student in her class. On an unspecified date, Respondent was walking down the hallway with her students, taking them to the buses. Respondent was holding T.B. by his arm, presumably for misbehaving. At the time, Mrs. Clark was in the hallway, but some distance away. When Respondent saw Mrs. Clark in the hallway, she told T.B., "If you don't behave, you're going to get a referral to that lady over there," pointing to Mrs. Clark. Mrs. Clark testified that there is nothing wrong with reminding a child that he could have to go the principal's office if he or she misbehaves, "if it [is] handled in the appropriate way." The clear implication was that the manner in which Respondent handled the situation described in paragraph 98 was inappropriate. However, no evidence was presented to establish the appropriate way to remind the student that his behavior needs to improve and that there are consequences for misbehavior. Recommendations of Mrs. Clark Respondent's 2000-2001 evaluation indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. To address this rating, Mrs. Clark issued a letter to Respondent which made two recommendations to assist Respondent in improving in this area. The letter is referred to on the evaluation and was given to Respondent on or about April 24, 2001, the day she received the 2000-2001 evaluation.9/ The first recommendation was that Respondent attend a Cooperative Discipline Workshop that was offered by the School District or "something similar to that that was offered by the district." The other recommendation was that Respondent go and observe behavior management in classrooms at other schools. No specifics were given as to who would schedule the time, place, and number of observations. With regard to the classroom management course, no information was provided as to what, if any, approval would be needed prior to taking the course. In neither instance was a time specified that Respondent would have to complete the observations and/or the classroom management course. During Respondent's tenure at Colson, the only written recommendations she received from Mrs. Clark were the two made in the letter issued to Respondent. As reflected on the 2000-2001 evaluation, Mrs. Clark issued the letter to address the "unsatisfactory" rating Respondent received in that evaluation. In such a case, a tenured teacher who receives an "unsatisfactory" rating, a letter and/or form of assistance is required to be provided pursuant to Section 1012.34(3)(d), Florida Statutes. Respondent's Efforts to Comply With Assistance Plans and/or Recommendations In an effort to comply with Mrs. Clark's recommendation that she observe other classes, Respondent asked several teachers on her first-grade team, including one who was nationally-certified, if she could observe them. Some of these teachers had been held out by Mrs. Clark as using behavioral models that were ones that Respondent might use in her class. All of the teachers agreed to allow Respondent to observe their classes, but Mrs. Clark denied Respondent's request to observe any of the teachers at Colson. Eventually, someone, likely Ms. Saunders or Mrs. Clark, scheduled an observation for Respondent at Yates Elementary School (Yates). On an unknown date between May 7, 2001, and December 6, 2001, Respondent went to Yates to observe several first-grade classes pursuant to Mrs. Clark's April 24, 2001, recommendation. Ms. Saunders accompanied Respondent to the class for the observations. As Respondent and Ms. Saunders went to observe in the various classrooms, it appeared to Respondent that the teachers in those classrooms had no prior knowledge of the observations. During the observations at Yates, Ms. Saunders directed Respondent to write down anything positive she saw regarding classroom management, as well as anything she found pedagogically unsound.10/ Ms. Saunders referenced and discussed Respondent's observations at Yates in the summary letter dated December 17, 2001. In that letter, Ms. Saunders recalled the following: During the visit to Yates, we witnessed some wonderful classroom strategies and we also saw some things that perhaps would not be helpful. I know, based on our conversation, that you saw some things that you might like to try implementing. I hope that you will continue to reflect on that day and try some of the things you think might work well in your room. Ms. Saunders also noted in the December 17, 2001, letter that at the time of the visit to Yates, she asked Respondent to write a plan that included trying or applying some of the classroom management strategies that they witnessed. Respondent complied with this directive as reflected in Ms. Saunders' letter in which she stated, "A copy of that plan was to be given to Mrs. Clark[,] and I am aware that you submitted something to her." As requested by Ms. Saunders, Respondent submitted a classroom management plan to Mrs. Clark based on what she observed at Yates that she could implement in her classroom. However, there is nothing in the record to indicate whether Respondent's plan was ever reviewed or critiqued by either Mrs. Clark or Ms. Saunders. After Mrs. Clark recommended that Respondent take a classroom management course, she attempted to do so, but was unsuccessful. Respondent's initial failure to take the classroom management course after the April 2001 evaluation, was based on a misunderstanding, miscommunication, and/or no communication between Mrs. Clark and Respondent. Later, Respondent's efforts to take a classroom management course were thwarted by Mrs. Clark. The misunderstanding, miscommunication, and/or lack of communication between Mrs. Clark and Respondent is evident. Almost eight months after Mrs. Clark initially recommended that Respondent take a classroom management course, she wrote in the "comment section" of Respondent's December 19, 2001, evaluation that she was "not sure" if Respondent had taken the course. In response, Respondent wrote on the same evaluation, "It was my understanding that a workshop would be scheduled for me during the school year." Mrs. Clark testified that Respondent had "repeatedly kept asking" for which workshop Mrs. Clark had signed her up. Based on the apparent misunderstanding discussed in paragraph 109, Respondent selected at least two different classroom management courses. She then requested Mrs. Clark's consent, because the course required payment of a fee and a substitute teacher for the time Respondent would be attending the course. Both courses were approved by the Hillsborough County School Board. Although in the 2001-2002 school year, Respondent made several requests to take a management course, Mrs. Clark denied all the requests, indicating that no money was available. In one case, a person from the School District office called Respondent and told her that no money was available for her to attend the courses she had requested. The payment for one of the courses was about $135.00 and required that a substitute teacher be hired to cover Respondent's class on the day of the course. Having been unsuccessful in obtaining permission or approval to attend two School Board-approved courses, on September 20, 2002, Respondent wrote an e-mail letter to Mrs. Clark regarding Respondent's efforts to take a classroom/behavior management course. In the e-mail, Respondent indicated that she had looked to take the recommended course on a professional study day (when students are not present), but had not found any such course being offered. In light of Mrs. Clark's and/or the School District's failure to approve a course for Respondent to take, Respondent requested that Mrs. Clark provide Respondent with the name of the classroom/behavior management course that Mrs. Clark wanted her to take and the date and time of such course. There is no evidence that Mrs. Clark ever responded to Respondent's September 20, 2002, e-mail or ever provided Respondent with the name of a classroom management course to attend. Moreover, no evidence was presented that the School District actually offered the recommended classroom management course during the relevant time period. Despite the recommendation that Respondent take the classroom/behavior management course, she was not provided with the assistance and in-service opportunity to help correct or improve the noted performance deficiency. Nonetheless, through her own effort, she increased her performance area, "enhances and maintains students' self-esteem," from "unsatisfactory" in the 2000-2001 school year to "needs improvement." Incidents Involving Respondent and School Principal and Staff First Incident (January/February 2001) In January or February 2001, during the lunch break, Vicki Davis, one of the other first-grade teachers, was sitting near Respondent and noticed that Respondent was writing in a notebook. Ms. Davis then asked Respondent, "What are you doing? Writing about kids or something?" Respondent did not elaborate, but told Ms. Davis that it was a behavior book. Ms. Davis was concerned because she saw her name in the book, but beyond that, she could not say what was in the book. Exactly what Respondent was writing in the "behavior book," is unknown, but this incident occurred soon after the student referred to in paragraph 41 was transferred from Ms. Davis' class to Respondent's class. Respondent implied that she was writing down observations about the child. Even though the precise contents of the "behavior book" were not clearly visible, Ms. Davis felt uncomfortable when she saw what she believed to be her name in the "behavior book." Second Incident (July 2001) In July 2001, when school was not in session, Respondent telephoned the school and asked Mrs. Clark to provide her with a report that Ms. Saunders had prepared. Before leaving the school, Mrs. Clark advised Jennifer Connolly, her secretary, that Respondent was coming to get the report and told Ms. Connolly to put the report in Respondent's mailbox. When Respondent arrived at Colson, she checked her mailbox, but did not see the report that she had come to retrieve. At the time, no one was in the front office area so Respondent went into Mrs. Clark's office and looked on her desk for the document. While Respondent was in Mrs. Clark's office looking through papers in an effort to locate Ms. Saunders' report, Ms. Connolly saw Respondent and asked why she was in the office. After Respondent explained that she was looking for Mrs. Saunders' report, Ms. Connolly told Respondent the report was in Respondent's mailbox and to leave Mrs. Clark's office. Ms. Connolly left the office and walked down the hall. After Ms. Connolly left Mrs. Clark's office, Respondent turned out the light in Mrs. Clark's office and closed the door to the office as she exited. By the time Respondent got to her mailbox, Mrs. Saunders' report was on top of the stack of mail in Respondent's mailbox. After being informed about Respondent's going into her office, Mrs. Clark contacted the School District's Professional Standards Office. An investigation was conducted and based on the findings, a letter was issued to Respondent. It is unknown if the letter was a warning, reprimand, or other type of communication since the letter was not offered as evidence at this proceeding. There is no indication that Respondent was doing anything in Mrs. Clark's office other than looking for the report that she came to the school to retrieve; the report that Mrs. Clark had expected her to pick up. Nonetheless, Respondent's decision to go into the principal's office, without permission, reflected poor judgment on her part. This, however, was an isolated incident and is not indicative of Respondent's usual judgment. Except for this incident, Respondent's record indicates that she usually exercised good judgment as shown by her evaluations for the relevant time period. For example, for the three school terms immediately prior to the July 2001 incident, Respondent's performance in the area related to a teacher's judgment under the Professional Behavior category, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory."11/ The only evaluation that indicated Respondent "needed to improve" in that area was the December 2001 evaluation, the first evaluation she received after the July 2001 office incident. However, in Respondent's very next evaluation dated April 24, 2002, her performance in the area, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory." Third Incident (2001-2002 School Term) In or about the 2001-2002 school year, Respondent brought a tape recorder to a team meeting. When Ms. Davis, one of the team members, saw the tape recorder, she felt uncomfortable and told Respondent to turn off the tape recorder.12/ Ms. Davis knew that "something was going on between [Respondent] and Mrs. Clark" and seemed to suspect that Respondent's bringing the tape recorder into the meeting was somehow related to that. However, Ms. Davis did not want to be a part of that and told Respondent, "This [meeting] is not about anything. We're working together as a team." Respondent immediately complied with Ms. Davis' request and turned off the tape recorder. After that one incident, Respondent never again brought a tape recorder to a team meeting. Fourth Incident (February 25, 2003) On or about February 25, 2003, as part of her usual routine of visiting classrooms, Mrs. Clark went to Respondent's classroom, entering from the back door. At the time, Respondent was sitting with two students, working with them. When Respondent saw Mrs. Clark, she got up from her seat and walked over to where Mrs. Clark was standing. Respondent then asked Mrs. Clark, "Did you leave right after us?" Mrs. Clark correctly understood, and Respondent confirmed that the question referred to Respondent's grievance hearing that was held the previous day and attended by Respondent and her attorney, as well as Mrs. Clark and the area supervisor. Respondent apparently thought Mrs. Clark indicated that she had left immediately after the grievance hearing. Respondent challenged Mrs. Clark and indicated that Respondent and her attorney had waited outside for Mrs. Clark for 15 minutes. Respondent then moved closer to Mrs. Clark and whispered in her ear. Mrs. Clark understood Respondent to say, "You're a liar. You're devious. There is a God. I'm not through with you yet." Respondent denied that she made these statements. Given the conflicting testimony of Mrs. Clark and Respondent, both of whom appeared to be credible witnesses, there is no clear and convincing evidence that Respondent made the statements. Nonetheless, it is found that Mrs. Clark understood and believed that the statements in paragraph 130 were the ones Respondent whispered to her. Mrs. Clark responded to Respondent's statements in a voice that was not a whisper by asking, "You're not through with me yet?" According to Mrs. Clark, during this incident, she repeatedly kept turning to Respondent and kept telling her, "If you have something to say to me, we can meet in my office." There were children in Respondent's classroom during the incident described in paragraph 130, but Mrs. Clark's credible testimony was that the children could not hear Respondent's comments. Mrs. Clark described the comments Respondent whispered in her ear as "quite upsetting." While Mrs. Clark might have been upset, her conduct clearly indicated that she did not feel threatened by Respondent's comments. After the exchange between Respondent described in paragraphs 130 and 131, Mrs. Clark stayed in Respondent's classroom to continue her visit and look at the children's work. In fact, Mrs. Clark took time to talk to a student in the class who she believed was not working. Later, she asked the children about a large crayon that was on the floor. At some point during the visit, Respondent noticed that Mrs. Clark was holding something in one of her hands, both of which were behind her back. Believing that the object in Mrs. Clark's hand was a tape recorder, Respondent grabbed Mrs. Clark's hand and splayed it open in an attempt to completely display the object. As Respondent grabbed Mrs. Clark's hand, she asked Mrs. Clark if she had a tape recorder and if she were recording Respondent. Mrs. Clark stated that the object she was holding was a two-way radio. Even though the object Mrs. Clark was holding was a two-way radio, Respondent did not believe Mrs. Clark's explanation. After or as Respondent grabbed Mrs. Clark's hand, Mrs. Clark told Respondent, "Get your hands off me! Get away from me!" Respondent believed Mrs. Clark was going to strike her so she moved back, away from Mrs. Clark. Undoubtedly, Respondent's conduct, described in paragraph 134, grabbing her supervisor's hand, was inappropriate, unprofessional, and disrespectful. However, based on the record, this was clearly an isolated incident. Moreover, this conduct does not constitute any of the statutory or rule violations alleged in the Administrative Complaint. Mrs. Clark then left Respondent's classroom and continued visiting other classrooms. After completing her routine classroom visits, Mrs. Clark called the School District office to report the February 25, 2002, incident in Respondent's classroom. Respondent also called the School District office to report the incident. In addition to calling the School District Office, Respondent called a friend who was a retired teacher and reported that she believed Mrs. Clark had tried to record her and asked for advice on what she should do if Mrs. Clark returned to her room. The following day, an investigator with the School District went to the school to investigate the matter. School District Request for Fitness for Duty Evaluation By letter dated April 30, 2003, the School District referred Respondent to Dr. James Edgar, M.D., a psychiatrist, for an evaluation. In the referral letter, Linda Kipley, the general manager of the School District's Professional Standards Office, stated that the referral was due to the School District's "concerns for a pattern of personal and professional behavior which has negatively impacted her capability and competence to perform the duties and responsibilities of teaching." Ms. Kipley's letter went on to say, "After reviewing our most recent investigative report, there is a question if she is fit for her teaching responsibilities and to teach minor children." Also, Ms. Kipley requested that Dr. Edgar provide a written report of his assessment of Respondent's "capability to make sound professional judgments and her capability to safely instruct children." Opinion of James Edgar, M.D. Dr. James Edgar, who was qualified as an expert in the field of psychiatry, conducted an independent medical (psychiatric) evaluation of Respondent. Based on information provided to Dr. Edgar by School District staff, there were questions raised about Respondent's ability to safely instruct minor children and about her general mental health status. Along with the request for the evaluation, the School District provided Dr. Edgar with copies of all of Respondent's evaluations since she was employed by the School District and the February 22, May 16, and December 17, 2001, letters/reports from Ms. Saunders. For some reason, Ms. Saunders' last report dated April 18, 2002, and discussed in paragraphs 85 and 86, was not provided to Dr. Edgar. Dr. Edgar found that Respondent had normal motor activity and normal facial expressions; that she was polite and her appearance was neat; and that she was calm although anxious (which Dr. Edgar indicated was a natural reaction under the circumstances of an evaluation being ordered by her employer). He also found that Respondent's intelligence was normal, her memory was intact, her senses were good, her affect was appropriate, and there was no evidence of hallucinations. Notwithstanding the foregoing conclusions, in the "summary and recommendation" section of his report, Dr. Edgar opined, I do not feel [Respondent] is currently capable of safely instructing young children." As the basis for this conclusion, Dr. Edgar stated that when Respondent is stressed by routine events, such as constructive criticism, her ability to keep things orderly and controlled is impaired and she becomes anxious and depressed. He further stated that the combination of Respondent's "major depression and pre-existing personality disorder interfere with the usual psychological functions (i.e. judgment and problem solving ability, emotional stability, ability to conform to societal standards of behavior, interpersonal skills, integrity, responsibility, ability to cope with stressful situations, and decision making in a crisis). In the "summary and recommendation" section of Dr. Edgar's written report, he prefaces the above-quoted opinion by stating, "This summary is provisional because I have not had an opportunity to review medical records or mental health records." At the end of the report, Dr. Edgar states that "I may amend my report after reviewing the previously mentioned records." As of the date of this proceeding, Dr. Edgar had not yet reviewed any of Respondent's medical records and mental health records, although Respondent advised him that she was being treated for depression by a psychiatrist and was in counseling with a licensed mental health professional. Contrary to the School District's concern for Respondent's "competence to perform the duties and responsibilities of teaching," Dr. Edgar testified that his report made no finding that Respondent was incompetent to teach. Opinion of Gerald Mussenden, Ph.D. Dr. Gerald Mussenden was qualified as an expert in the area of psychology. On September 5 and 12, 2003, Dr. Mussenden conducted a comprehensive evaluation of Respondent to determine her overall mental functioning (i.e., whether she was mentally stable, well adjusted, and/or if she is a threat to herself or others). As part of the evaluation, Dr. Mussenden administered, among other instruments, the Child Abuse Potential Inventory, which has been developed and standardized since 1982. The Child Abuse Potential Inventory is valid in terms of content validity, construct validity, and predictive validity and is a tool used by psychologists who do testing specializing in abuse propensities. Based on the results of the Child Abuse Potential Inventory, Dr. Mussenden concluded that Respondent had no child abuse potential characteristics and was not a danger to children. Moreover, Dr. Mussenden opined that Respondent was emotionally stable, had good skills by which to relate and interact with others, and had no problems or difficulties that would endanger others around her. Dr. Mussenden's evaluation report accurately notes that at the time of the evaluation, Respondent was under the treatment of a psychiatrist and in counseling with a licensed mental health counselor. Dr. Mussenden's opinion is that this course of treatment contributed to Respondent's mental health status at the time of the evaluation. In his report, Dr. Mussenden states, "Due to their success [the psychiatrist and mental health counselor], [Respondent] is relatively well adjusted and without signs of mental difficulties." Dr. Mussenden's credible testimony was that a person can suffer from depression and still be competent to handle one's duties as a teacher. When Respondent was evaluated by Dr. Mussenden, she was taking medication for depression. The purpose of such medication is to help people suffering from depression become well-adjusted. The fact that there was no evidence that Respondent was suffering from depression during the September 2003 evaluation indicates that the medication she was taking was effective in that it masked any depression that may have been present. Dr. Mussenden saw Respondent within 60 days of the hearing and based on that visit, he did not change his opinion that Respondent posed no risk of harm to children.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2006.
