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 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.
Findings Of Fact Until March 23, 1994, the Respondent, James Ray, was a drama teacher on annual contract at the Pinellas County Center for the Arts (PCCA) program at Gibbs High School in St. Petersburg, Florida. He had been on successive annual contracts since 1990. PCCA is a special program for the arts. It is located at Gibbs High School and operates under the purview of the Gibbs High Principal and her administration. But it operates separately under the direction of its own Coordinator, who reports to the Principal, and has its own Guidance Counselor, who works primarily with the Coordinator, while also part of the school's guidance office. The education and work experience of those hired as PCCA teachers tend to be primarily in the performing arts, as opposed to being in formal classroom teaching. PCCA's class schedule differs from that of the regular Gibbs High students. While regular students are dismissed from school at approximately 2 p.m., PCCA students are in class until approximately 3:30 p.m. The Incident on February 10, 1994 During a class the Respondent was teaching at approximately 2:00 p.m. on Thursday, February 10, 1994, a student of the Respondent, named Marshal, came to the door of the Respondent's classroom and got the Respondent's attention. The Respondent went to the door, and the student asked the Respondent to step out in the hall. When the Respondent did, the student and another student of the Respondent, named Sean, pointed to a third student, who had fallen out of a chair near the door in the hallway and was lying on the floor. The two apparently sober students told the Respondent, and Respondent could see for himself, that the student lying on the floor was inebriated to the point of being incapacitated. Marshal and Sean told the Respondent that the inebriated student had been drinking. The Respondent presumed that they were referring to alcohol consumption. The Respondent told Marshal and Sean that he was going to contact a school administrator, but they pleaded with him instead to let them take the inebriated student home. They assured the Respondent that they could manage it, and the Respondent agreed to let them do so. Since the regular Gibbs High students were being dismissed from school, the Respondent advised them to go out the back door of the school so as to encounter the fewest people possible. The Respondent did not know the name of the inebriated student. He vaguely recognized the student but did not know from where. The Respondent did not think the inebriated student was in any of the Respondent's classes. The Respondent never inquired as to the identity of the student. After dealing with the students who had come to the door, the Respondent returned to his classroom to advise his class that he had to leave the classroom and to have one of his students lead dance exercises in his absence. He then went to the office a guidance counselor, Cody Clark, to report the incident. However, since he did not know the inebriated student's name, he was unable to identify him for Clark. The three students already had left, and the Respondent did not know where they were. He and Clark concluded that there was nothing more that could be done at that time. After speaking with Clark, the Respondent returned to his classroom. By the end of class, Marshal returned to the Respondent's class and told the Respondent that Sean had taken the inebriated student home on a regular school bus. This time, he indentified the inebriated student by name. Marshal also informed the Respondent that he had videotaped David, the inebriated student, while he was drunk in order to communicate an anti-drinking message to the other students. (The theme of the message was supposed to be, roughly, "make sure you never get this drunk.") The Respondent did not ask to see the video and did not ask whether David agreed its being recorded and shown. The Incident on February 11, 1994 The next morning, February 11, 1994, the Respondent had only four students in his first period class. (Some of his students apparently observed what some called "national skip day.") Someone came by his classroom to tell him that the videotape of David drunk the day before was going to be shown in the first period classroom of another teacher, Keven Renken. At the time, the Respondent thought that the video had been recorded after the three students had left the Respondent's classroom door on the previous afternoon. He again did not ask to preview the video. Although the Respondent did not ask, he had the impression that David was aware of and agreed to the showing of the videotape. The Respondent also was assuming that Renken had approved of the showing. He did not verify either assumption. Meanwhile, Marshal had only told Renken that he had "a film of someone being drunk." He also told Renken that the purpose of the videotape was to communicate an anti-drinking message. It was not clear from the evidence that Renken understood the video to be a recording of a student actually being intoxicated, as opposed to acting. Marshal managed to give Renken the impression that the Respondent had approved the showing of the videotape, and Renken did not preview the tape. When the Respondent and his four students arrived at Renken's class, Renken was attending to matters at his desk, and the video had just begun. The Respondent told Renken that he understood that a videotape was being shown in Renken's classroom. This question confirmed to Renken that the Respondent already knew something about the videotape and, perhaps, had previewed it and had approved it. The teachers did not discuss with each other whether the videotape had been previewed or approved. When Marshal saw that the Respondent and his class were arriving, he rewound and restarted the tape. The Respondent stood and watched the videotape with the students while Renken continued to attend to the matters at his desk. Soon after the Respondent arrived, Renken got up from his desk and asked the Respondent to be in charge of both classes while he left the classroom to copy some paperwork. The Respondent naturally agreed, and Renken left the classroom for approximately fifteen minutes. When Renken returned to the class the videotape was almost over. (It only lasted approximately 25 minutes.) It is not clear at what point in the showing of the videotape Renken left the room, or what point he later returned. He did not see very much of it. The Respondent, on the other hand, watched the entire videotape with the students. The videotape, which actually had been made during the morning on the previous day, was disgusting. It began by showing David unconscious on the floor of a room in Marshal's house next to what appeared to be, and what Marshal described on the videotape as being, green vomit. Right at the outset, Marshal mocked David for having gotten so drunk and verbally abused him by calling him names that were vulgar, humiliating and denigrating. From the beginning, the Respondent (and, if he was watching, Renken) should have realized: (1) that the videotape was inappropriate for viewing by the class; (2) that he should have suspected that David had not agreed to its viewing by the class; and (3) that he should have suspected that Renken did not knowingly approve showing the videotape to the class. He should have stopped the tape at least to question David and Renken. The longer the tape ran, the more obvious and clear these judgments should have become to the Respondent. Subsequent footage showed David, while still lying unconscious on his stomach, being dragged by his feet, with his face scraping along the floor, out of the house and onto a concrete porch, leaving a trail of green vomit. On the porch, the other teenagers present (all male) continued various forms of physical and verbal abuse (which continued throughout the videotape.) When David regained semi-consciousness and began to move, they allowed him to fall off the porch on his face. (The porch was approximately two feet above ground level.) As he was leaning against the porch while trying to stand up, still only semi-conscious and totally incapable of protecting himself, they took turns pouring hot and cold water, flour, and urine on him. In a later segment, David is shown standing outside the house and is heard trying to protest and plead with the teenagers to stop hosing him down with a garden hose. He is seen attempting to stagger away and returning to the concrete porch, and it is obvious that he easily could have fallen and seriously injured himself. He stops on the porch to lean against the house, and the physical and verbal abuse continues. In a third segment, David is seen lying in a bathtub, again unconscious. There, the physical abuse continues. The other teenagers pour shampoo, gel, and powder on him. Later, they put nail polish and lipstick on his face, and one of them grabs his hair and bangs the back of his head against the bathtub. Finally, they take turns standing spread-eagle on the edge of the tub and attempting to urinate on David. At least some, but maybe not all, of them actually urinate on him. The Respondent exhibited appallingly poor judgment in passively watching the videotape to its conclusion. It was clearly probable, if not absolutely obvious, that showing the videotape to the class was humiliating and denigrating, not only to David but to the others as well. (Although Marshal and Sean obviously did not realize it, the videotape raised serious questions about their character.) Yet, the Respondent concluded that he did not have "the right" to stop the videotape because it supposedly was the result of Marshal's and Sean's attempt at artistically and creatively expressing an "anti-drinking" message. It is difficult to detect the supposed artistic or creative content in the videotape. Even if there were any, the Respondent clearly should have recognized his "right" as a teacher to stop the humiliating and degrading videotape. He did not even think to stop it in order to ascertain whether Renken and David indeed had approved of showing it. (In fact, neither had.) After the videotape finished, the Respondent left with his class. Neither he nor Renken confiscated the videotape to prevent it from being shown again. As a result, between class periods, Marshal began to show it again. When guidance counselor Clark looked in to check the classroom, where he was planning to lead a tour during the next period, he briefly saw what was going on and told Marshal to stop the tape and bring it to him later. (Clark did not confiscate the tape either. It was not clear from the evidence what parts of the videotape Clark was able to see.) When the Respondent returned to the classroom, where his next class was being held, Marshal was in the process of showing it again. This time, the Respondent told him to stop the tape but still did not confiscate it. Expectations of Pinellas County Teachers At the beginning of each school year, all Pinellas County teachers receive a copies of the Pinellas County Teacher Handbook and Code of Student Conduct. They are told to read and be familiar with them. According to the Pinellas County Teacher Handbook, while the use of guidance counselors for help with minor discipline problems related to instruction is permissible, for other discipline problems teachers are to contact the appropriate assistant principal. While the Teacher Handbook encourages teachers to "handle as many discipline problems as possible without jeopardizing the learning environment," it also provides that major offense should be referred directly to the assistant principal's office. The Teacher Handbook includes, among disciplinary offenses classified as major, being in possession or under the influence of "an unknown substance." The Teacher Handbook also includes the following provisions from an outdated version of the Principles of Professional Conduct for the Education Profession: Obligation to the student requires that the educator: Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety. The Teacher Handbook also requires that teachers be familiar with the "Code of Student Conduct." Among other things, the "Code of Student Conduct" prohibits the use or possession of illegal drugs, materials, substances, or alcoholic beverages on school property or prior to arriving at school and provides that a student violating the prohibition will be suspended and recommended for expulsion. Impact on Teacher Effectiveness David did not agree to showing the videotape. On the morning of Friday, February 11, 1994, Marshal and Sean told him that they had videotaped David while he was drunk the day before and that Marshal had the videotape. They said they were going to show the video in class that day. David did not think they were telling him the truth and did not think there actually was such a videotape. In any event, he was preoccupied as a result of also being told by Marshal and Sean that they had brought him to school the day before. He was concerned that he may have been "referred" to the administration for discipline for being intoxicated on campus. David went to ask guidance counselor Clark and was told that Clark had not "referred" him but that the Respondent might have. When he went to see the Respondent between the first and second period of class, the Respondent revealed to David that there was a videotape and that it already had been shown during first period in Mr. Renken's class. David then went to Renken's first period classroom, where Marshal and Sean were showing the videotape again. David watched for just a short time, but long enough to be shocked and disgusted, as well as humiliated. He left the classroom and went to report to Clark what Marshal and Sean were doing. David has been seriously adversely affected by the videotape and its having been shown at school. He already did not have a good self-concept. As a result of the videotape and its being shown at school, and the aftermath, including this proceeding, he now is in counseling. He thinks former friends and aquaitances have been avoiding him. He verbalizes strong anger at, disillusion with, and distrust of Marshal and Sean. He thought they were his friends but no longer does after what they did. He does not verbalize similar feelings about the Respondent. To the contrary, he appreciates the Respondent's willingness to allow Marshal and Sean take him home from school on Thursday, February 10, and does not blame him very much for the videotape being shown the next day. On the other hand, he blames himself for causing the Respondent's dismissal and is experiencing difficulty dealing with the resulting guilt he feels. On the other hand, David's mother faults the Respondent on several counts. First, she believes he should have taken steps to ascertain what David's problem was on the afternoon of Thursday, February 10, instead of taking the word of Marshal and Sean that he was drunk, presumably on alcohol, but that he was "okay." Second, she thinks she should have been notified so that she could have made arrangements to get David home and take care of him. Third, she thinks the Respondent exposed not only David but, as far as he knew, also other students to safety risks by allowing Marshal and Sean to take David home on the bus. Finally, she faults him for allowing the videotape to be shown in the classroom on Friday, February 11. She thinks the Respondent should be dismissed. She would no longer entrust the Respondent with David's safety and welfare, and she does not think the Respondent should be entrusted with the safety and welfare of any other students. She has given the School Board notice that she and her husband intend to claim damages for personal injuries to David as a result of the incidents on February 10 and 11. Several other students also were appalled at the videotape that was shown on Friday, February 11. They also found it to be disgusting, degrading, and humiliating. They empathized with David and were upset at Marshal and Sean and the other teenagers involved in making the videotape. They also were surprised and perplexed that the teachers were allowing it to be shown. They kept watching the Respondent as the videotape was being shown to see if he was going to stop it. The evidence is that, as a result of the incidents on February 10 and 11, the Respondent's effectiveness as a teacher in the school district has been seriously impaired. At the same time, many other students and parents think the Respondent can continue to teach effectively. Without question, except for the incidents on February 10 and 11, the Respondent has been a fine teacher. Some report that he is one of the best teachers in the school. Except for the incidents on February 10 and 11, he has been caring and concerned for the students. The students have responded to those good qualities and have liked and respected the Respondent. The Respondent has been able to engage his students in the learning process and elicit a good educational response from his students. The incidents on February 10 and 11 represent unfortunate blemishes on an otherwise commendable teaching record. It certainly is possible that the Respondent will be able to rehabilitate himself so as to be worthy of consideration for future annual contracts with the School Board. Discipline of Others Involved The Respondent was not the only School Board employee who was disciplined for conduct related to the incidents on February 10 and 11, 1994. Cody Clark was reprimanded for not notifying administration and David's parents at approximately 3:30 p.m., when he first learned from the Respondent that David was the intoxicated student who had been brought to the Respondent's classroom earlier that afternoon, and for not confiscating the videotape he saw Marshal playing the next morning. Keven Renken was suspended without pay for ten days for his role in allowing the videotape to be shown on Friday, February 11, 1994. It is found that the nature and extent of their roles, and questions regarding the extent of their knowledge of the content of the videotape, can justify taking less severe action against them. There was no evidence of any similar incidents involving School Board employees. The Respondent introduced evidence of discipline resulting from other kinds of incidents in an attempt to demonstrate that dismissal is too severe in relation to the Respondent's actions (or inactions). But those other incidents were too dissimilar to compare with the Respondent's action (or inaction) in this case, and the School Superintendent explained valid reasons for viewing the action (or inaction) by the teachers involved in those cases as being less egregious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Respondent, James Ray, from employment under his annual teaching contract. RECOMMENDED this 13th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1631 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-40. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary, and last sentence is conclusion of law. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Also, most of the news articles reported phases of the dismissal process. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and unnecessary. 5.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not supported by the evidence. As to E-2, accepted but unnecessary. (Also, omits: "i.e., contacting parent, detentions.") As to E-3, rejected as not supported by the evidence. 12.-13. Accepted but unnecessary. However, the statements and clear inferences in the handbooks and rules, including the excerpts from an outdated version of the Principles of Code of Professional Conduct, required the Respondent to act differently than he did. 14.-17. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. As to the second sentence: rejected as contrary to the greater weight of the evidence that "the purpose" was to dissuade other students from abusing alcohol; accepted and incorporated that Marshal and Sean stated that was a purpose of the videotape. Accepted and incorporated. Rejected as not established that they "drug" [sic] David, or that Clark was listed as an administrator. (Clark was listed as a "Counselor.") Rejected as contrary to the greater weight of the evidence that they said David was "drunk" or "messed up." (They said he was "sick." They assured her twice that David was nonetheless "alright." The third time she asked, David managed to lift his head and smile at her. She thought they were acting.) Otherwise, accepted but unnecessary. Accepted and incorporated. First sentence, accepted and incorporated. Second sentence, rejected as contrary to the greater weight of the evidence. Accepted but unnecessary. Accepted and incorporated. 26-27. Accepted but unnecessary. (It was not clear from the evidence that they knew or should have known David's condition.) Accepted and incorporated. (However, it would not have been Clark's job, and apparently was not Clark's nature, to reprimand the Respondent. He certainly communicated to the Respondent that there was not much either of them could do without the identity of the intoxicated student, and the two of them engaged in considerable effort to try to deduce the student's name.) Accepted and incorporated. Rejected as contrary to the greater weight of the evidence that Marshal came back "shortly" after the Respondent left Clark's office. 31.-35. Accepted and incorporated to the extent not subordinate or unnecessary. 36. Rejected as contrary to the greater weight of the evidence. 37.-38. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence that the period was "short"; it was about 15 minutes. Rejected as contrary to facts found and to the greater weight of the evidence. 41.-42. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not being clear from the evidence why the Respondent did not let Marshal show the tape during the second class period; however, that is the reason given by the Respondent in his testimony. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that there were no "drastic reactions." The Respondent himself found the tape to be "disgusting," and so did several other students. However, they apparently were following his lead, looking at the Respondent and waiting to see his reaction (reasonably, expecting him the stop the showing.) Also, rejected as contrary to facts found and to the greater weight of the evidence that the Respondent did not shut off the videotape only because "he did not want to override Mr. Renken." He also testified that he did not want to stifle the "creativity" of Marshal and Sean. It is not clear why the Respondent had the poor judgment to let the videotape be shown. Accepted but unnecessary. Accepted and incorporated. Rejected as not established by the evidence. 48.-52. Accepted but subordinate and unnecessary. 53. As to the first sentence, he testified that students needed to be protected, not teachers. Second and third sentences, rejected because he made it clear that each case is decided on its own facts and that the Respondent's evidence did not recite all of the pertinent facts. From the facts contained in the Respondent's evidence, the Superintendent recalled: in one case, a teacher got a three-day suspension for pushing a student, who did not belong in the classroom and refused to leave, out the door, accidentally causing the student to bump his head and cut his arm slightly; in another, a teacher got a five-day suspension for becoming upset at a student who hit him in the face with a thrown wad of paper, chasing the student with a stool, and accidentally injuring the student's hand slightly when he threw the stool on the floor; and, in a third, a teacher was suspended for five days for drinking off campus with adult students and for driving them and a school staff member while "appearing to be under the influence of alcohol." 54.-60. Accepted and incorporated to the extent not subordinate or unnecessary. 61. Accepted and incorporated as to specific references to videotapes and their confiscation. But several more general guidelines applied and were adequate. 62.-64. Accepted but subordinate to facts contrary to those found, and unnecessary. The guidelines were adequate to inform the Respondent as to what he should have done in this case. (Even without knowing the specifics of the guidelines and rules, Nurmela knew from intuition that the Respondent had violated them. Even Pomerantzeff testified that, from her understanding, never having seen it herself, the videotape was beyond the limits of what she would have allowed students to show and see.) Rejected as contrary to the greater weight of the evidence that he testified student and parent reaction was the sole basis for determining teacher effectiveness. (It can be one factor.) Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that they made that generalization. 68-70. Accepted and subordinate to facts found. 71.-72. Accepted but subordinate and unnecessary. Rejected that they were instructed that signing any petition for the Respondent could result in discipline, only signing one that Shorter had not pre-approved, in accordance with school policy. Accepted but subordinate and unnecessary. Rejected as not established by the evidence. 76.-77. Accepted but hearsay that cannot support findings. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney 301 Fourth Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Mishele B. Schutz, Esquire 535 Central Avenue St. Petersburg, Florida 33701 Howard Hinesley Superintendent of Schools School Board of Pinellas County 301 Fourth Street S.W. Largo, Florida 34640-3536 Honorable Doug Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue is whether Petitioner properly determined that Respondent should be discharged from employment as a tenured teacher based on his professional incompetence.
Findings Of Fact At all times pertinent to this case, Petitioner employed Respondent as a certified tenured teacher. Respondent has 28 years of experience teaching mathematics. Michael Kemp became principal at Englewood High School (EHS) during the 2002/2003 school year. Respondent was a mathematics teacher at EHS for the 2002/2003 and 2003/2004 school terms. EHS has approximately 2,050 students. It is unique in that it serves as Petitioner's secondary center for a program known as "English for Speakers of Other Languages (ESOL)." Approximately 80 percent of the students at EHS score below a Level 3 (below standard) on the Florida Comprehensive Assessment Test (FCAT). In the 2002/2003 school year, EHS implemented a standards-based curriculum for the first time. EHS teachers, including Respondent, received training relative to new student performance standards. The teachers also received training in the use of a new mini-lesson plan format for 90-minute blocks of instruction in content areas. During the 2002/2003 academic year, Petitioner implemented a new college preparatory mathematics (CPM) curriculum and a new reading strategy for all content areas. Respondent, along with other EHS teachers, received training in the new math curriculum and reading strategies. Respondent did not transition well to the new way of teaching. He did not adjust his teaching style to accommodate a "block" schedule, which required 90-minutes of instruction for each class period. Mr. Kemp evaluated Respondent for the 2002/2003 school year. Mr. Kemp determined that Respondent's ability to plan and deliver instruction, Competency A on the annual evaluation form and the "Classroom Observation Instrument" (COI), was unsatisfactory. However, Mr. Kemp concluded that Respondent's overall performance for the 2002/2003 school year was satisfactory. For the 2003/2004 school year, EHS initiated a sheltered academic content teaching model. As a result of the new model, many ESOL students exited the core academic program and attended special ESOL classes with designated teachers in academic areas such as language arts, mathematics, and social studies. For the 2003/2004 school year, Respondent was not a sheltered content teacher. Therefore, Respondent's classes contained some ESOL students but not as great a percentage as in 2002/2003. A high student-failure rate was common at EHS for the 2003/2004 school year. That year, approximately two-thirds of Respondent's students previously had failed their required math classes and were repeating the courses. Parental complaints against teachers are normal. The complaints are not always valid. However, when the 2003/2004 school year commenced, Mr. Kemp became concerned about the number of parents who wanted their children removed from Respondent's classes. Some of the parents made the requests as soon as their children were assigned to Respondent's classes. Other parents requested reassignment of their children to other math classes as the year progressed. On November 7, 2003, a student in one of Respondent's classes became very disruptive. Respondent attempted to get the student to settle down. When his efforts were unsuccessful, Respondent directed a verbal obscenity to the student in front of other students while class was in session. Specifically, Respondent told the student to "get the f--- out" of the classroom. On November 14, 2003, Mr. Kemp had a conversation with Respondent about his unsatisfactory classroom performance. In a memorandum dated November 17, 2003, Mr. Kemp advised Respondent that a success plan would be developed and a support team identified to assist him. On December 3, 2003, Mr. Kemp observed Respondent teaching a math class. Mr. Kemp determined that Respondent did not demonstrate satisfactory teaching behaviors. Regarding Respondent's classroom management, Mr. Kemp's observations included the following: (a) Respondent did not control the classroom; (b) Students were not on task during the warm-up activity; (c) Students engaged in conversations, which were not related to the task at hand; (d) There were no apparent expectations for classroom behavior; (e) Respondent tolerated disrespectful talk from students; and (f) Respondent did not control classroom dialogue and discussions. Regarding Respondent's instructional delivery, Mr. Kemp's observations included, but are not limited to, the following: (a) Respondent did not connect the purpose of the lesson with its content; (b) Respondent lectured from the front of the class and did not vary his instructional delivery; (c) Many students were not on task; (d) Respondent continued the lesson despite statements of frustration and lack of understanding from students; (e) Respondent demonstrated content knowledge and mastery of material, but he did not successfully transfer content to students or communicate with them; (f) The lesson was not motivating; (g) Students were not engaged and ignored the lecture; (h) Except for two students who answered questions, the class was either lost or not engaged; (i) Some students requested other students to explain or teach them an assigned task; (j) Respondent circulated among the students but he had no organization as to what was being checked; and (k) Respondent was unaware that students were working on other assignments unrelated to the class work. In a memorandum dated December 4, 2003, Mr. Kemp notified Respondent that a conference had been scheduled for December 10, 2003. The purpose of the meeting was to initiate Respondent's success plan. On December 8, 2003, Mr. Kemp observed Respondent teach another math class. Mr. Kemp concluded that Respondent did not demonstrate satisfactory teaching behaviors. Mr. Kemp's observations included the following: (a) Respondent needed assistance with appropriate lesson planning for a block schedule; (b) Respondent relied too much on a lecture format with no connection between the content of the lesson and its purpose; (c) Respondent had adequate content knowledge but he was ineffective in transferring that knowledge to the students; (d) Respondent had difficulty keeping the students engaged and on task; and (e) Respondent had little control over classroom dialogue. On December 10, 2003, Respondent met with his success team. After the meeting, Respondent was given an opportunity to provide additional strategies and suggestions for improvement to the success plan. Respondent did not take advantage of this opportunity. Respondent's 2003/2004 success plan contained specific goals, objectives and tasks in the following areas: (a) Plans and delivers effective instruction; (b) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) Evaluates the instructional needs of students; (d) Communicates with parents; and (e) Promotes student growth and performance. The success plan identified certain members of the success team to work with Respondent on each area of professional development. The plan provided for weekly meetings with the success team members between January 5, 2004, and March 30, 2004. The success plan required Respondent to attend professional development cluster meetings for off-site continuing education in the following subject areas: (a) Standards Based Education; (b) Rituals and Routines; and (c) Effective Communication. The success plan provided opportunity for on-site continuing education and professional development. For example, the plan required Respondent to read and summarize certain professional literature such as the following: (a) Two math chapters in Best Practices; and (b) Modules related discipline and communication in CHAMPS Foundation. Additionally, Respondent's plan required him to view a video tape related to effective interpersonal communications with students and explain in writing how he planned to implement communication strategies in his classes. Most important, the plan required Respondent to observe his math colleagues twice a month. The success plan required Respondent to develop weekly lesson plans. These lesson plans had to include mini-lesson plans for each class at least once in each daily lesson. The mini-lesson plans included FCAT warm-ups, opening, practice, and closure. The success plan required other on-going activities including, but not limited to, the following: (a) Preparing a written script and implementing appropriate questioning strategies using Bloom's Taxonomy; (b) Preparing a written script of appropriate questions for use when monitoring and probing for solutions with cooperative groups; (c) Preparing a written summary on learning modalities; (d) Preparing a written list of strategies to meet all classroom exceptionalities and learning styles; (e) providing students with written individual corrective feedback; (f) Posting dates for remediation, retesting, or revision of work; (g) Establishing and applying published classroom routines; (h) Posting classroom rules; (i) Creating and maintaining an Absentee Assignment Notebook; (j) Publishing and enforcing a procedure for recording and reporting tardies; (k) Maintaining a notebook of handouts for student access; (l) Publishing and implementing a routine for lesson closure and class dismissal; (m) Maintaining student data records in the "Success by Design" notebook; (n) Communicating with parents about unsatisfactory student performance and course recovery opportunities, using two methods and keeping a log and copies of any written communication; and (o) Creating a daily journal of professional reflections relative to improving student rapport. The success team members observed Respondent's classes and reviewed his written assignments to determine whether he was meeting the requirements of his success plan. The team members provided Respondent with verbal and written feedback about his progress or lack thereof. The success team met as a group on February 10, 2004. On March 10, 2004, Mr. Kemp made a final observation of Respondent's teaching performance. Mr. Kemp concluded that Respondent was attempting to establish a rapport with his students. However, Respondent's performance was inadequate in the following ways: (a) He needed to implement strategies to engage the students; (b) He needed assistance with lesson plans; and (c) He needed additional strategies for classroom management. Mr. Kemp met with Respondent on March 12, 2004. At the meeting, Mr. Kemp advised Respondent that he had not successfully completed the success plan. The annual evaluation that Mr. Kemp and Respondent signed at the meeting indicates that Respondent's performance was unsatisfactory in the following areas: (a) Competency A--plans and delivers effective instruction; (b) Competency C--Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (c) Competency G--promotes student growth and performance. According to the evaluation, Respondent's overall performance for the 2003/2004 school year was unsatisfactory. As requested by Respondent, Petitioner assigned Respondent to a teaching position at La Villa School of Arts (La Villa) for the 2004/2005 school term. Connie Skinner was La Villa's principal and Jeffery Hutchman was head of the math department at La Villa. Mr. Hutchman made several attempts to contact Respondent during the summer before the 2004/2005 school year commenced. Mr. Hutchman intended to invite Respondent to a middle-school mathematics workshop. Respondent never received Mr. Hutchman's messages and therefore did not attend the workshop. At La Villa, Respondent did not have an assigned classroom. Instead, Respondent was a "traveling" teacher who changed classrooms each period. On September 3, 2004, Ms. Skinner observed Respondent teach a math class for the first time. Ms. Skinner had some positive and negative comments about her observations. Among other things, Ms. Skinner concluded that Respondent circulated appropriately among the students, quickly stopped disrespect by one student, and had good questions from the class at the end of the lesson. She made the following suggestions: (a) Respondent needed to speed up the mini-lesson; (b) Respondent needed to set a time limit for student work to reduce the number of students who were not engaged or slow to start; and (c) Respondent needed to get students to the board. EHS sent La Villa a copy of Respondent's 2003/2004 success plan. On September 3, 2004, the success team at La Villa decided to use a modified version of the 2003/2004 success plan until Ms. Skinner and the La Villa success team had an opportunity to observe Respondent and develop a new success plan for the 2004/2005 school year. On October 11, 2004, Ms. Skinner made an unplanned observation in Respondent's class. The purpose of the visit was not to evaluate Respondent, but to gain additional information for the development of the new success plan. During the visit, Ms. Skinner noted, among other things, that Respondent's voice registered disgust with students for not using notes. On October 20, 2004, Ms. Skinner observed Respondent teach a math class, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner noted the following: (a) There was a great deal of confusion in a group assignment; (b) Respondent did not gain student attention at the start of the lesson; and (c) Respondent made statements showing his disdain for students and his lack of class discipline. Ms. Skinner concluded that Respondent's performance was unsatisfactory. On October 21, 2004, the success team at La Villa presented Respondent with a new success plan. The plan included specific goals and objectives to effect improvement in Respondent's ability to plan and deliver instruction, to demonstrate effective classroom management skills, to show sensitivity to student needs, to demonstrate abilities to evaluate students' instructional needs, to communicate with parents, and to promote student growth and performance. The 2004/2005 success plan required Respondent to attend training classes in "Connected Math." It also required him to attend workshops in instructional strategies and classroom management as well as other on-site and off-site continuing education programs. The 2004/2005 success plan specified that success team members would assist Respondent by explaining and demonstrating classroom strategies. Additionally, the success team members were required to observe Respondent in the classroom and provide him with feedback. Ms. Skinner observed Respondent on November 17, 2004. Among other comments, Ms. Skinner noted that Respondent's students were either not engaged or asked questions unrelated to the subject of the lesson. Ms. Skinner also concluded as follows: (a) Respondent's lesson did not include a mini lesson; (b) The content of the students' notebooks were poorly arranged and inconsistent; and (c) The students' homework folders were mostly empty and contained no teacher commentary. Ms. Skinner observed Respondent on November 24, 2004, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner determined that Respondent told the class to "shhhh" over 30 times. For this and other reasons, Ms. Skinner concluded that Respondent had not demonstrated satisfactory performance. On January 20, 2005, Ms. Skinner used the COI and the Professional Behaviors Instrument (PBI) to evaluate Respondent's classroom performance. These evaluations indicated that Respondent had improved in some areas such as clarity of instruction and interaction with students, resulting in a more engaged class. However, his overall performance was unsatisfactory. On March 10, 2005, Ms. Skinner used the COI to evaluate Respondent's teaching behaviors. Ms. Skinner observed the following: (a) Respondent presented material that was hard to read; (b) Respondent handled questions poorly; (c) The pace of the lesson seemed very slow; (d) Respondent failed to praise a student for a correct answer; and (e) Respondent's tone of voice carries disdain for students. Ms. Skinner concluded that Respondent's teaching behaviors were not satisfactory. On March 11, 2005, Ms. Skinner completed Respondent's annual evaluation. She concluded that his performance was unsatisfactory in the following areas: (a) Competency A, Plans and delivers effective instruction; (b) Competency D, Shows sensitivity to student needs by maintaining a positive school environment; (c) Competency E, Evaluates instructional needs of students; and (d) Promotes student growth and performance. Respondent's overall evaluation indicated that his professional growth was unsatisfactory. As to Compentency A, persuasive evidence indicates that Respondent's delivery was not clear and explicit. His students did not understand the lesson objectives. His written communications included misspelling and typos. As to Competency D, the record shows that Respondent failed to provide his students with positive reinforcement. Instead, his tone of voice carried disdain when interacting with his students. As to Competency E, Respondent had an unusually high failure rate. This shows that Respondent's instruction did not meet the needs of his students. As to Competency G, Respondent did not provide for individual student needs during his classes. On March 15, 2005, Ms. Skinner and Respondent discussed his 2004/2005 success plan. Ms. Skinner advised Respondent that he had not successfully completed the plan. After each observation/evaluation, Ms. Skinner discussed her findings with Respondent. She advised Respondent of strategies for improving his teaching behaviors. While there was some improvement in the middle of the 2004/2005 school term, by the end of the year there was a reversion in Respondent's professional growth. Ms. Skinner stated that "all of the strategies for standards-based education that we had worked on and helped him to understand, we thought went by the wayside." Regarding Competency A and Competency G, Respondent was unable to improve, despite the assistance of his success teams and the specific in-service training they provided. Respondent's was unable to maintain a satisfactory level of performance for Competency D and Competency E. He made improvement in only one area, Competency C. Overall, Respondent's professional growth was unsatisfactory for consecutive annual evaluations separated by a year of in-service training to correct his deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order, terminating the Respondent's employment as a tenured teacher. DONE AND ENTERED this 18th day of November, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th of November, 2005. COPIES FURNISHED: Adres Rojas, Esquire City of Jacksonville City Hall, St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph J. Wise, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207
The Issue The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c) and (g), Florida Statutes (2010), as charged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Respondent holds Florida Educator Certificate 806958, covering the areas of elementary education and primary education, which is valid through June 30, 2015. Respondent holds a bachelor’s degree in mass communications, a master’s degree in early education, and a post- graduate degree in early Montessori education. At all times material to the allegations in the Administrative Complaint, Respondent was employed as a teacher at Hyde Park Elementary School (Hyde Park) and Gregory Drive Elementary School (Gregory Drive) in the Duval County School District (DCSD). Respondent received performance evaluations that her supervisors characterized as unsatisfactory for the 2009-2010 and 2010-2011 school years. For the 2009-2010 school year, Respondent taught first grade at Hyde Park. She had taught at Hyde Park since the 2008- 2009 school year. Her evaluations both at Hyde Park and John Ford Elementary prior to the 2009-2010 school year all reflect satisfactory, high performing, or outstanding ratings on individual rating criteria. For each year where an evaluation was included in Respondent’s Exhibit 8, the overall rating was satisfactory. The principal at Hyde Park for the 2009-2010 school year was Angela Kasper. The 2009-2010 school year was Ms. Kasper’s first year as principal of Hyde Park, although she had been a principal at another school previously. When Ms. Kasper came to Hyde Park, the school was considered an “A” school. It is now a “D” school. Hyde Park is in an area of town known for gang violence and declining neighborhoods. Ms. Kasper was responsible for evaluating Respondent. She performed multiple classroom observations, including observations on September 23, 2009; January 19, 2010; and February 26, 2010. The assistant principal, Ronrica Troy, also performed an observation on March 19, 2010. A Teacher Assessment Instrument (TAI) is used to record the results of an observation and must be discussed with the teacher following the observation. The TAI lists Competencies A-I, with varying numbers of “indicators” under each competency. The evaluator checks those competencies that are demonstrated during an observation, and on the second page of the document, circles those competencies that have not been demonstrated sufficiently. However, there is no standard as to how many items needed to be checked in order for a teacher’s performance to be considered satisfactory. Regardless of the number checked, the ultimate determination of sufficiency was within the discretion of the rating principal. Not all competencies can be demonstrated during the observation itself. The Teacher Assessment Manuals for both the 2009-2010 and 2010-2011 years recognize this fact. Both say: The TAI is also designed to measure and document possession of important skills and professional behaviors that may not be readily observable in the classroom setting. The instrument is designed to facilitate assessment of classroom performance and other teacher characteristics, which are linked to effective student instruction. The instructions to supervisors recognize this TAI feature. For each year at issue, the instructions to principals/supervisors included the following: Conduct the observation using the TAI. All competency indicators that are observed during this observation will be checked on the TAI. Complete the TAI for all competencies/indicators not completed during the classroom observation. After the instrument has been completed, review and rate the data, and prepare the report to share with the employee. The TAI for the September 23, 2009, observation indicated that all competencies are satisfactory except (A) promote student growth and performance; (B) evaluate instructional needs of students; (C) plan and deliver effective instruction; (D) show knowledge of subject matter; and (E) utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline. On September 28, 2009, Ms. Kasper issued Respondent a Notice of Potential Unsatisfactory Performance advising her that she must improve in the following areas or she would receive an unsatisfactory evaluation for the school year: (A) promote student growth and performance; (B) evaluate instructional needs of students; (C) plan and deliver effective instruction; (D) show knowledge of subject matter; and (E) utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline. On or about October 26, 2009, a Success Plan was created and a Success Plan Team was established for Respondent. The Success Plan team (consisting of Ms. Kasper, Assistant Principal Ronrica Troy, and Iris Burton) met with Ms. Burney on October 26, 2009; November 17, 2009; November 23, 2009; January 22, 2010; and March 17, 2010. Several strategies for improvement were included in the Success Plan. Tasks (referenced as “strategies”) included in the Success Plan were as follows: Competency A: Promote Student Growth and Performance Develop lesson plans for all content areas that demonstrate differentiated instructional practices based on student needs as determined by the principal. Plans must be current, available at all times, connected and reflect strategies that are based on Sunshine State Standards and the DCPS-Learning Schedule Maintain Data Notebook with evidence of on-going usage for lesson development and tracking/disaggregating for individual student progress Implement, with a mentor, a breakdown of grading criteria with a variety of components (ex: classwork, homework, participation, projects, tests) Provide evidence that grading is accurate and based on a sufficient number and variety of learning tasks Competency B: Evaluates Instructional Needs of Students: Create, maintain and keep current student portfolios that include multiple sources of student work that document student progress toward the standard as determined by the Principal. Assessments/data will be organized in Data Notebook and accessible during instructional time and utilized to drive lesson development (Collected data should include current: Reading, Math and Science Monitoring Forms, PMP, Safety Net tracking, DRA2, FAIR reports, running records, Scrimmage reports, emergent reader checklist, writing profiles, and Data from Riverdeep Destinations Reading/Math) Communicate individual progress with students through parent conferences with feedback from mentor. Consistently modify instruction based on assessed student performance as determined by the principal. Competency C: Plans and Delivers Effective Instruction Utilize guided questions in the delivery of instruction for all content areas to focus learning expectations, higher level thinking and understanding – questions will be highlighted in lesson plans and posted during delivery of specific content area subject matter. Read America’s Choice, “Independent Reading, Phonemic Awareness and Phonics, Writing Planning Mini-Lessons, & Conferencing/Revising Monographs Series” as a review on how to effectively deliver the workshop models in all content areas and meet with principal to discuss findings. The lesson plans will always include beginning/ending review, clearly defined learning task, specific learning expectations, corrective feedback and clarification (The Workshop Model) and the use of the Learning Schedule. The lesson presentation will demonstrate the appropriate choice of learning activities, strategies and developmentally appropriate assignments/materials that are used as they relate to student’s needs. Observe mentor and other grade level teachers in the workshop model. Consistently implement strategies learned from them. Competency D: Shows Outstanding Knowledge of Subject Matter: Read Professional books/articles readings to become more familiar with best practices (ex: planning, effective instructional delivery, differential instruction, or the workshop model (ex: Harry Wong, or Diane Heacox) Use feedback from announced and unannounced visits using various feedback forms such as TAI, FPMS, Look-Fors, and Classroom Walkthrough instruments to modify and adjust delivery if needed. Participate in Guided Reading and Differentiated Instruction workshops, and create a Classroom Instruction Plan on how you will implement what was learned. Use content area Look-For while reviewing videotaped/audiotape lessons of yourself (content area to be determined) and meet with Principal to discuss your findings. Competency E: Utilizes Appropriate Classroom Management Techniques: Develop Classroom Management Plan that addresses appropriate behavior and submit classroom management plan to Principal and make adjustments based on feedback Review list of interventions from, The Teacher’s Encyclopedia of Behavior Management by Randy Sprick, to apply age appropriate behavior management strategies for the management of student (positive and negative) behavior. Submit list to principal and make adjustments based on feedback, upon approval interventions should consistently be used in the management of student behavior. Develop, post, and follow daily class schedule to assist in effectively keeping students on task, stopping misconduct, using instructional time effectively, and maintaining instructional momentum. Demonstrate consistent and effective classroom management techniques as measured by TAI, announced and unannounced Classroom Walk-Throughs, and FPMS Behavior Management Domain 2.0 as determined by the principal. Consistently maintain a neat, clean, and organized classroom. Note: Classroom appearance and organization will be monitored during Formal, Informal observations and Classroom Walk-Throughs. Develop and implement CHAMPS activity/transition protocol with mentor. Observe mentor and other teacher’s rituals and routines. Consistently implement per Principal’s satisfaction. Ms. Burney cooperated fully with the Success Plan process. Out of this somewhat daunting list of strategies, there were only two that Ms. Kasper indicated were not completed: under Competency B, the requirement to “create, maintain and keep current student portfolios that include multiple sources of student work that document student progress toward the standard as determined by the principal”;1/ and under Competency C, “to consistently modify instruction based on assessed student performance as determined by the principal.” Ms. Kasper stated that she did not see student portfolios during a subsequent observation, but gave no real explanation for her conclusion regarding the second area achieved. As an overall result, at the conclusion of the Success Plan, it is indicated that the plan has been successfully completed but that the competencies have not been successfully demonstrated. During the Success Plan process, Ms. Kasper testified that she communicated with Ms. Burney about her progress and how she could improve. However, the nature of the communication is somewhat suspect. For example, Ms. Kasper verbally reprimanded Ms. Burney for failing to have her lesson plans on her desk at all times. In December, Ms. Burney had an extended absence due to illness and was out of school from approximately December 1 through December 11. On December 11, 2009, Ms. Kasper issued a formal letter of reprimand to Ms. Burney, stating: On October 2, 2009, I verbally reprimanded you for reporting to work unprepared to teach your students. Lesson plans were to be on your desk at all times and you were to have emergency plans with the bookkeeper. To review the events as of today, December 7, 2009, you have not provided emergency plans to the bookkeeper and lesson plans were not available today when a substitute was called in for you at the last minute. Later in the morning the bookkeeper checked her email and you did send in plans but it was too late to get them to the substitute. She had other duties that kept her away from checking her email . . . . Your failure to leave adequate lesson plans for substitute personnel is neglect of your professional responsibilities as a classroom teacher and will not be tolerated. Your first responsibility is to your students and their education. If you find yourself incapable of currently meeting this responsibility for whatever reason I would encourage you to consider taking a personal leave until matters in your personal life are resolved to the extent that they no longer interfere with your teaching responsibilities . . . . Respondent responded to the reprimand, stating: I respectfully rebut the letter of December 11, 2009 from Angela Kasper, Principal. The Step II of the Progressive Discipline Plan states “Unprepared for Students.” I unequivocally state that I met my professional responsibilities and commitments as an educator during my absence of 12/1 to 12/11. The dates and occurrences of unpreparedness that are outlined in the disciplinary letter can be refuted by my attainment of the Kelly Services call logs, my lesson plans, and emails. According to my grade level chairperson, the only occasion when the lesson plans were not available was when the Duval County School Board computers were down for the morning. The lesson plans had been sent by email the previous evening. At no time, was my grade level team responsible for providing substitute plans. Admittedly, as Mrs. Kasper stated in her letter, my lesson plans were not prepared one week in advance. However, the first week of my absence, against doctor’s advice, I went before school to set up the activities, tab the teacher editions, and provide detailed lesson plans and schedule. After the first week, all lesson plans were written and emailed the night before in preparation for the substitute. Ms. Kasper admitted at hearing that she never checked the Kelly Service call logs, did not look at the lesson plan sent to the bookkeeper, and did not recall if the school board computers were down that morning. She did not check to verify whether the computers had gone down, and acknowledged that they sometimes do. Despite this, she used the reprimand in preparing Respondent’s evaluation. On January 19, 2010, Ms. Kasper conducted a second formal evaluation. As a result of this observation, Ms. Kasper felt that Ms. Burney still needed improvement in Competencies A, B, C, and D. Ms. Burney provided a post-observation reflection in which she acknowledged that she was also disappointed in the lesson, stating in part that the directions she gave the students were inadequate, and that students who were “pulled” from the lesson for reading support left other students without partners and caused further confusion. Respondent indicated that she retaught the lesson with much improved results. Ms. Kasper, however, did not see the lesson as retaught. A third observation was conducted on February 26, 2010. For this observation, Ms. Kasper was concerned that the lesson taught was not on the learning schedule for that time period. However, the learning schedule was not provided and she did not indicate when the lesson should have been taught. Nor does it appear that she raised this issue with Ms. Burney during the pre- observation conference. Ms. Burney’s pre-observation notes indicated that she was teaching the lesson based on classroom activities focusing on everyday problems and the solutions the children were offering. Ms. Kasper did not explain why teaching the lesson was inappropriate if the teacher felt the students would benefit. Ms. Kasper felt that Respondent was improving in Competency C, but not enough to be successful. Finally, on March 19, 2010, Ms. Troy conducted an observation in Respondent’s classroom. Ms. Kasper asked her to do so in order to get a different viewpoint. Ms. Troy found Competencies A, B, and C to be deficient. There were some inconsistencies between Ms. Troy’s assessment of Respondent regarding her available documentation and the determination in the Success Plan that Respondent had completed the documentation within days of the observation. For example, the Success Plan indicated that Respondent had achieved almost all of the indicators in Competency A within five days of the evaluation, whereas Ms. Troy indicated that she saw none of them. The same can be said with respect to the data notebook and other indicators under Competency B. Ms. Kasper acknowledged that she did not talk to Ms. Troy about the documentation examined for the Success Plan, and also acknowledged that many of the things identified on the TAI are not observable based on looking at a teacher teaching in the classroom. Instead, consistent with the Teacher Assessment Manual, they have to be checked off after reviewing the materials maintained by the teacher. For example, whether a teacher is interpreting data or using it for individual diagnoses, or plans instruction based on diagnosed student needs, cannot be determined simply by observing the teacher. Student data would have to be examined. Ms. Kasper also admitted at hearing that for much of her testimony she was simply reading her notes and that her memory of events was not entirely clear. Further, and more importantly, she acknowledged that some of her notes and comments regarding Ms. Burney’s observations were more reflective of Ms. Kasper’s personal preferences about the way things should be done, such as writing center names on the board rather than in a chart; having lesson plans on the desk instead of behind or in the desk; and having book bags on the back of student chairs, as opposed to somewhere else. Some of her preferences were what she viewed as “best practices.” “Best practices” are not part of any stated rules or standards. As a result, it is difficult to know how much of her evaluation of Ms. Burney was a result of her personal preferences as opposed to any district expectation. On or about March 26, 2010, Ms. Kasper prepared an evaluation of professional growth for the 2009-2010 school year, which reflected an overall unsatisfactory rating. The evaluation indicated a satisfactory score in Competencies E through I; a needs improvement for Competencies A and D, and an unsatisfactory in Competencies B and C. The unsatisfactory scores resulted in negative points (two each), which resulted in an overall evaluation score of -4.00. In accordance with the Teacher Assessment Instrument used by the DCSD, this score resulted in an unsatisfactory evaluation. At the time of Respondent’s evaluation, results from the FCAT had not been received. Petitioner did not present evidence regarding what, if any advancement the students in Ms. Burney’s class made during the year they were in her class. Teachers who receive an unsatisfactory evaluation have the option to remain at the school where they received the evaluation or to transfer to another school. Respondent opted to transfer to another school, and was transferred to Gregory Drive Elementary School for the 2010-2011 school year to teach kindergarten. Andrea Williams-Scott is the principal at Gregory Drive. She has been with the DCSD for 18 years, and is in her sixth year as principal at Gregory Drive. At the time Respondent came to the school, Ms. Williams-Scott was in her third year as principal. Ms. Williams-Scott knew when Ms. Burney came to Gregory Drive that she transferred based upon a prior unsatisfactory evaluation. She reviewed the prior Success Plan but did not review the evaluations from the previous year. Instead, she met with Ms. Burney at the beginning of the year, and told her that she would conduct an observation within the first 30 days she was there, and they would go from there. Ms. Williams-Scott conducted a formal observation on September 17, 2010. She did not see any indicators for Competencies A and B; thought the mini lesson was too long; and that the picture used for a picture walk was too small for the children to see. The essential question for the lesson was posted, but not really reviewed with the children. However, Ms. Burney did a good job of explaining content to the children, and one child was able to restate the concepts perfectly. While Ms. Burney used CHAMPS, the district-wide class management model, Ms. Williams-Scott felt the classroom management was inconsistent. As a result of the observation, Ms. Williams-Scott found that Ms. Burney needed improvement in Competencies A-E. A Success Plan was created for Respondent for the 2010- 2011 school year on or about October 1, 2010. Initially, Respondent appeared reluctant to participate in the Success Plan, but was more responsive as the year progressed. Once again, the Success Plan strategies are extensive. They include: Competency A: Promotes Student Growth: Establish classroom Safety Nets for children in the academic area of reading, math, and writing Monitor and track students’ progress in meeting kindergarten standards for all subject areas Create and maintain a data notebook that shows evidence that there is continuous use of data to develop and implement lessons that will insure student growth. Notebook needs to be in place by October 22, 2010. Data in notebook should be dated and include data gathered from DRAs, running records, guided reading, FAIR, Destinations Success for reading and math, EnVisions/Math Investigations assessments, conferencing note, anecdotal notes and PMP’s. Implement and maintain an accurate grade book including a breakdown of grading criteria with a variety of components and the next steps for student instruction beginning on October 22, 2010. Competency B: Evaluates Instructional Needs of Students Create and use rubrics for formal and informal assessments to track students’ progress and assist in developing personal plans for re-teaching and mastery. This data will be reviewed monthly at each monitoring meeting. Match assessments to curriculum and standards as evidenced in lesson plans that you will create with mentor (reading) and Math Coach (math). Lesson plans (including differentiation for student needs, guided reading and guided math) are due to Mrs. Williams-Scott via email each Monday by 7:50 a.m. Create and maintain student portfolios with a variety of up-to-date student work that documents student progress towards meeting the standard as determined by the principal. Competency C: Plans and Delivers Effective Instruction Review content/performance standards, curricula expectations with mentor and math coach. Observe mentor/Math Coach conduct a lesson in your classroom. Debrief with the mentor/coach after the lesson(s) have been taught. Employ all strategies discussed in debriefing in daily instruction of students. Participate in the planning of all lessons modeled in your classroom. Co-teach lessons with mentor/math coach. Debrief with the mentor/coach after the lesson. Employ all strategies discussed in debriefing in daily instruction of students. Participate in the planning of all lessons modeled in your classroom. List and review with students essential questions for subjects taught with class daily. Write lesson plans that follow the workshop model. The components that the lesson plan should include are: Sunshine State Standard(s), essential question, mini-lesson, work-time, closing. The presentation of the content in a lesson will demonstrate the use of developmentally appropriate learning activities, strategies, and materials for use in differentiated in centers and small group activities. Teach lessons that are observed by the mentor/math coach. Debrief with the mentor/coach after the lesson(s) have been taught. Employ all strategies discussed in debriefing in daily instruction of students. Competency D: Shows Outstanding Knowledge of Subject Matter Read professional books/articles given to you by members of the support team to become familiar with best practices. After reading articles, discuss with the member of the support team your findings and questions from the article. Implement newly found strategies in your classroom after the debrief. Use feedback from all classroom visits to modify delivery of instruction to children. Participate in grade-level specific Coaching Cycle. Implement strategies covered in Coaching Cycles for your classroom. Competency E: Utilizes Appropriate Classroom Management Techniques Implement CHAMPS daily in your classroom. Read professional books/articles given to you by the support team to become familiar with effective classroom management techniques. After reading articles, discuss with a member of the support team your findings and questions from the article. Implement newly found strategies in your classroom. Post and follow classroom schedule daily to assist in effectively using instructional time and maintaining instructional focus and momentum. Develop a plan for dealing with students’ misconduct. Submit a classroom management plan. After final approval, demonstrate effective classroom management techniques in all classroom observations. Consistently maintain an organized classroom that is free from clutter and neat. Please note: Classroom appearance will be monitored via all classroom walkthroughs and formal/informal observations. Observe mentor/math coach’s classroom management techniques during model lessons. Debrief about effective classroom management behaviors observed. Implement strategies discussed in debrief. Competency F: Shows Sensitivity to Student Needs by Maintaining Positive School Environment Establish classroom rules that all children have to follow. Read and discuss the Code of Ethics with an administrator. Videotape yourself teaching a lesson. Watch the lesson and debrief with mentor. Later in the process, videotape lesson and review with mentor. Note improvements from initial video in a written reflection. Identify appropriate/negative consequences for behavior. Submit plan to an administrator. Once plan has been approved, implement the plan daily. All of these strategies were completed with the exception of three: under Competency A, “monitor and track students’ progress in meeting kindergarten standards for all subject areas”; under Competency B, “create and use rubrics for formal and informal assessments to track students’ progress”; and under Competency C, “teach lessons that are observed by the mentor/math coach. Debrief with the mentor/math coach after the lesson(s) have been taught.” With respect to the rubrics, Ms. Burney completed them but did not bring them to the Success Plan meeting for review, because of the amount of materials she was trying to bring to the media center for the meeting. When Respondent requested permission to return to her classroom to get them, she was not allowed to do so. With respect to the strategy in Competency A, Ms. Burney had DRAs, running records, and guided readings, but the documents the kindergarten teachers were using as a team were not present. While the final version of the Success Plan indicates she did not teach lessons that were observed by the mentor/math coach, debrief afterward and employ strategies discussed in the debrief, Ms. Hammette testified that she did in fact observe lessons that Ms. Burney taught and debriefed with her, and that Ms. Kannada did the same. Ms. Williams-Scott did not explain why this strategy was not met. On October 28, 2010, Ms. Williams-Scott conducted a second formal evaluation of Ms. Burney. She noted no indicators as being seen in Competencies A or B. Several indicators were checked for Competency E; all were checked for Competencies D and G; half were checked for Competencies C, F, and H; and all but one for I. The TAI included several positive comments, as well as some negative ones. Most importantly, on the second page of the TAI where deficient areas are usually circled, Ms. Williams- Scott circled nothing. Her failure to circle any deficiencies was not based upon a belief that Ms. Burney had vastly improved her performance, but rather because, since a Success Plan was in place, she felt it to be unnecessary. Standing alone, however, there was no indication on the TAI that would provide to Ms. Burney an indication that her performance had or had not improved since the prior observation, and Ms. Williams-Scott testified that evaluations are based on observations, not completion of the Success Plan. While Ms. Williams-Scott thought circling the deficient competencies to be unnecessary because a Success Plan was already in place, Ms. Kasper testified that it was important to circle competencies needing improvement so that a teacher has notice of the areas that need to improve, and that it is “absolutely critical for this evaluation process.” Ms. Kasper’s testimony on this point is credited. On January 12, 2011, Ms. Williams-Scott conducted another formal observation. Under Competency A of the TAI, she checked the indicator that Ms. Burney “integrates student performance into lesson plan,” but no other indicators were checked. Notes by Ms. Williams-Scott stated that math data was insufficient, with no groups for individual instruction, and that inventories were not complete at all intervals for all students. No indicators were checked for Competency B. About half were checked for Competency C, and as was the case for the prior observation, there were both positive and negative remarks on the form. All indicators were checked for Competencies D, F, G, and I, most for Competency E, and one out of two for Competency H. Once again, no areas were circled as not being satisfactory on the second page. On or about January 14, 2011, Ms. Williams-Scott issued to Respondent a Notice of Potential Unsatisfactory Performance advising Respondent that she must improve prior to the date of her final evaluation or she would receive an unsatisfactory evaluation for the school year. The Notice advised Respondent that she needed to show improvement in the following areas: (A) Promote Student Growth and Performance; (B) Evaluate Instructional Needs of Students; (C) Plan and Deliver Effective Instruction; (D) Show Knowledge of Subject Matter; (E) Utilize Appropriate Classroom Management Techniques, Including the Ability to Maintain Appropriate Discipline; and (F) Show Sensitivity to Student Needs by Maintaining a Positive School Environment. Given the number of indicators checked for Competencies D, E, and F, and to some extent Competency C on the previous two TAI’s, their listing on the Notice seems unsupported. Ms. Burney signed the Notice but stated that she did not agree with it. Finally, on March 22, 2011, Ms. Williams-Scott conducted another formal observation. Two indicators of five were checked for Competency A, with a note that there was a lack of documentation of student growth. One indicator, “uses multiple assessment techniques,” was checked for Competency B, with the note that running records were present for some students (but presumably not for all). Half of the indicators were marked for Competency C, all for Competency D, G, and I, most for Competency E, all but one for Competency F, and one of two for Competency H. Like the two previous TAI’s, no competencies were circled as deficient on the second page. Ms. Williams-Scott prepared an evaluation of professional growth for Respondent and concluded that for the 2010-2011 school year, Respondent had achieved an unsatisfactory rating. She was rated as unsatisfactory for Competencies A and B, needs improvement for Competency C, and satisfactory for all other competencies. Consistent with the scoring required by the Teacher Assessment System in place for the 2010-2011 school year, Ms. Burney received a score of -5.00, which resulted in an overall score of unsatisfactory. As was the case with the Hyde Park evaluation by Ms. Kasper, there was no consideration of FCAT scores or other statewide testing when Ms. Williams-Scott evaluated Ms. Burney. On or about May 10, 2011, Ed Pratt-Daniels, Superintendent of Schools for Duval County School District, wrote to Respondent advising her that she would be discharged as a teacher with the DCSD, and providing her with information regarding her right to request a hearing with respect to her termination. Respondent elected not to request a hearing and on July 27, 2011, signed an irrevocable letter of resignation as an employee of the DCSD. Teachers who worked with Ms. Burney described her as a very dedicated teacher who worked hard, came in early, and stayed late. She tutored students both through a tutoring company and on her own time, often did extra things for her students and developed positive relationships with them. One teacher who taught special education students in Ms. Burney’s classroom described her as having a special gift for bringing lessons down to the children’s level, and did not see a problem with her teaching style. After careful review of the evidence as a whole, the problems with Respondent’s performance stem not from incompetency, but from a failure to adhere to the mandates of current educational theory based in large part on data collection, maintenance, and analysis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Education Practices Commission enter a Final Order finding that Respondent violated section 1012.795(1)(g), Florida Statutes. It is further recommended that she be placed on probation for a period of two years, and that as a condition of probation, she be required to take six semester hours of college-level courses in areas determined appropriate by the Commission. DONE AND ENTERED this 22nd day of August, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2014.
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 Should Respondent be dismissed from her employment with Petitioner School Board for "professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act" (Ch. 21197, Laws of Florida, 1941, as amended by Chs. 70-671, 72-576, and 81-372, Laws of Florida).
Findings Of Fact For purposes of this proceeding, Petitioner Duval County School Board is an agency of the State of Florida charged with administrating the Duval County Teacher Tenure Act as cited above. Respondent Clementine Johnson is a certificated and tenured teacher pursuant to the provisions of that Teacher Tenure Act. She has been employed by Petitioner at all times relevant. The charging document only covers the 1992-1993 and 1993-1994 school years. During the 1992-1993 school year, Respondent was assigned to Ed White High School. During the 1993-1994 school year, Respondent was assigned to Arlington Middle School. Ronnel Poppell was the principal at Ed White High School during the 1991-1992 and 1992-1993 school years. He has been an employee of the Duval County School Board for 34 years. During the last 17 years of that time, he has served as a school principal at various schools. He holds a Bachelor's Degree and a Master's Degree and is certificated in Physical Education and Health and in Administration Supervision. At the time of the hearing herein, he was the immediate past president of the Florida Association of School Administrators and a member of the assessment team that prepared the Duval County School System's current assessment instruments. During the 1991-1992 school year, which is not directly in issue in this case, Respondent worked at Ed White High School under Mr. Poppell's supervision. During that year, Respondent was an Inside School Suspension Teacher and as such was not responsible for delivering instruction as that term is normally understood. Mr. Poppell gave Respondent a satisfactory evaluation for her performance as an Inside School Suspension Teacher during the 1991-1992 school year. Prior to the beginning of the 1992-1993 school year, Respondent voluntarily changed assignments in order to avoid being reassigned to another school as part of a staff reduction. Respondent's duties for the 1992-1993 school year consisted of teaching classes in business education and teaching classes in peer counseling. Respondent was certificated in the area of business instruction and thus qualified on paper to teach those types of classes. Mr. Poppell observed Respondent in the classroom on 10 to 12 occasions during the 1992-1993 school year. His observations were memorialized in a series of notes which were ultimately reduced to typed form. At each observation, Mr. Poppell found a number of deficiencies in Petitioner's performance, although the same, precise problems did not occur each time. The most serious problem was always in the area of classroom management and discipline. Mr. Poppell observed unruly student behavior on virtually every occasion that he visited Respondent's classroom. He observed continual bickering between students. One time, a textbook was thrown across the room. Mr. Poppell also observed inappropriate and inconsistent instruction by Respondent in that the same lesson was taught on successive days rather than new material being introduced on a progressive basis. Mr. Poppell observed that significant destruction had been done to School Board property. While he did not always observe all the acts that damaged classroom equipment, he clearly observed that significant damage had been done to typewriters and to chairs as well as graffiti written on desks. Jane B. Friedlin was the School Board's Supervisor of Business Administration during the 1992-1993 and 1993-1994 school years. Ms. Friedlin has a Bachelor's Degree in Business Education and a Master's Degree in Educational Leadership (formerly Administration Supervision). She has taught business education at the high school and business college levels and has written business education textbooks. She has been involved in the business education field the majority of the last 33 years. At Mr. Poppell's request, Ms. Friedlin observed two of Respondent's classes on November 17, 1992. Her observations from that date were memorialized in a memorandum to Mr. Poppell dated November 18, 1992. Ms. Friedlin observed that Respondent was not in control of her class with all students on task at any time. The students displayed a total lack of respect for Respondent. Instruction was scanty, hard to follow, and in some cases incorrect or incomplete. Several students threw paper, one student made chicken sounds without being reprimanded, and students talked during the entire period. Mr. Poppell discussed his observations with the Respondent on three separate occasions: October 7, 1992, November 18, 1992 and January 6, 1993. Despite Mr. Poppell's conferences with Respondent, her performance did not materially improve. Respondent failed to turn in seating charts to Mr. Poppell in order to determine which students were responsible for the damage, as requested by Mr. Poppell. By memorandum of January 19, 1993, Respondent protested the observation and involvement of Ms. Friedman. In order to assist Respondent in improving her techniques and performance, Mr. Poppell made arrangements for her to observe peer counseling classes taught by other teachers at Ed White High School and for her to visit similar classes at three other high schools. She did this and also attended an in-service workshop. On March 15, 1993, Mr. Poppell completed an "Evaluation of Professional Growth of Teacher" for Respondent for the 1992-93 school year. That evaluation showed Respondent to be unsatisfactory in five of the eight competencies rated therein and unsatisfactory overall. Mr. Poppell had read Ms. Friedlin's memorandum and considered the contents of that memorandum as part of his evaluation of Respondent's performance. Respondent signed the evaluation and the Classroom Observation Instrument (COI) upon which the evaluation was based. Pursuant to Section 4(e) (2) of the Duval County Teacher Tenure Act, Respondent transferred to Arlington Middle School for the 1993-1994 school year. She also took a summer course between the school years. Dr. Jordan E. Baker, Sr. was the Principal of Arlington Middle School during the 1993-1994 school year. Dr. Baker holds a Bachelor of Science Degree, a Master of Education Degree, a Specialist in Education Degree, and a Doctor of Philosophy Degree. He has been employed by the Duval County School Board for a total of 30 years, including three years as a Principal, seven years as a Vice- Principal, and two years as an Assistant Principal. Pursuant to Section 4(e) (3) of the Duval County Teacher Tenure Act, Dr. Baker met with Respondent in order to develop a plan to afford Respondent the opportunity for specific in-service training to correct the alleged deficiencies in her performance. Dr. Baker met with Respondent on August 18, 1993 and August 27, 1993 to develop this plan, which Dr. Baker referred to as a "Success Plan". During the course of the conferences on August 18, 1993 and August 27, 1993, Dr. Baker observed no recognition on Respondent's part that her teaching performance was deficient or that she was in need of assistance in improving that performance. Dr. Baker informally observed the Respondent's classes on several occasions between September 24, 1993 and October 18, 1993. Dr. Baker's notes concerning those observations were subsequently reduced to typed form. During those observations, Dr. Baker detected fundamental problems with the Respondent's classroom management. Respondent's classes were not focused on the academic assignments. The students acted in a disruptive manner throughout each of his observations. Dr. Baker also observed that the classroom environment itself was deteriorating in terms of furniture and equipment being destroyed. Dr. Baker became concerned over the safety hazard not only to the students but to the Respondent due to the conduct of students in turning off lights and throwing textbooks and other objects. Dr. Baker conducted formal observations of Respondent's teaching performance on October 26 and 27, 1993. Those observations were conducted at different times of the day and with different classes of students. Again, Dr. Baker noted major problems with classroom management and with students' disrespect for Respondent. He noted that the students were confused about what was expected of them and did not understand Respondent's directions. Dr. Baker memorialized his observations on these two dates in two Classroom Observation Instruments (COI). Shortly thereafter, Dr. Baker met for an hour with Respondent to discuss her progress and his observations. Dr. Baker suggested to Respondent that the "Success Plan" be revised to help Respondent be more comfortable with what was expected of her. He suggested that Respondent needed to visit other schools to observe other teachers' performances and that she take workshops. Because Respondent indicated that she had done those things in the past and saw no need to do so again, Dr. Baker neither offered nor arranged further assistance of these types. Again, Dr. Baker observed Respondent's lack of recognition of, and denial of, the existence of the problem. On November 4, 1993, Dr. Baker was called to the music suite because of a fire which had been set by two of Respondent's students. On that occasion, Respondent was able to provide Dr. Baker with little or no information concerning what happened or who was responsible. Dr. Baker memorialized this occurrence in a written Incident Report and in a narrative. Further investigation showed that the students were referred to the office by Respondent for discipline. They forged a punishment assignment on the teacher's copy and set fire to the original referral slip outside the window of her classroom in the band room, with resultant smoke and pandemonium in all classes in that area. As a result of this incident, Dr. Baker became even more concerned about safety. He expressed his concerns in a November 10, 1993 memorandum to Dr. Alvin White, Assistant Superintendent, requesting that Respondent be removed from the classroom for her safety and that of the students assigned to her classes. That request was denied. During the course of the 1993-1994 school year, Dr. Baker received a number of Student Accident Reports and Incident Investigation Forms concerning students being injured by thrown books, fights, and being tripped and injured in Respondent's classroom. Shirley Rodriquez was Vice Principal of Arlington Middle School during the 1993-1994 school year. Ms. Rodriquez has a Bachelor's Degree in Business Education and a Master's Degree in Educational Leadership. She has been employed by the Duval County School Board for a total of 19 years, three of them as Vice-Principal. She has completed the Duval County School Board Principal Preparation Training Course. Respondent first came to Ms. Rodriquez's attention due to accident and injury reports and reports of noise, confusion, and lack of safety in Respondent's classroom from surrounding teachers in the band area where Respondent's business education lab was located. Through an October 18, 1993 memorandum from Chuck McKenny, the Assistant Principal for Community Education, Ms. Rodriquez became aware of problems with the condition of the typewriters and textbooks in Respondent's class. She accompanied Mr. McKenny to Respondent's classroom and found numerous typewriter parts on the floor and in the trash cans. She gathered up the parts and kept them in the school vault. She had not received any reports from the prior year's business education teacher concerning any problem with the typewriters nor any complaints from the Respondent prior to being made aware of this problem by Mr. McKenny. Ms. Rodriquez observed Respondent's classroom performance on October 21, 1993 for part of a 50 minute classroom period, approximately 33 minutes. She found that Respondent's class was not an atmosphere conducive to learning, that a number of students were talking while the Respondent was talking, and that the students were generally off-task. One student was playing with a chair part which he had removed from his chair. On October 27, 1993, Ms. Rodriquez and Michael S. Kemp were summoned to Respondent's classroom by students in need of assistance. Michael S. Kemp was one of the Assistant Principals for Student Services at Arlington Middle School during the 1993-1994 school year. Mr. Kemp has a Bachelor's Degree in Business Administration and a Master's Degree in Teaching and Educational Leadership. He is currently enrolled in the Doctoral Program at the University of North Florida. He has worked for the Duval County School Board for six years. Arriving in Respondent's classroom on October 27, 1993, Ms. Rodriguez and Mr. Kemp observed students running around the room, one student throwing a dictionary across the room, and a couple of students hiding under desks to avoid being hit with books. Respondent was taking no action to stop these activities. After Mr. Kemp and Ms. Rodriquez entered the classroom and Mr. Kemp demanded order, the students settled down in approximately 15 to 20 seconds. Several children complained of having been hit in various portions of their bodies by books and/or pencils that had been thrown. Ms. Rodriguez and Mr. Kemp memorialized this incident in separate memoranda, each dated October 27, 1993. In response to calls from Dr. Baker, the Principal, and Ms. Rodriquez, the Vice-Principal, Supervisor of Business Education Jane B. Friedlin again observed Respondent for a total of one hour and thirty minutes on November 9, 1993. Ms. Friedlin again noted that Respondent did not have control of her class and that she had very poor rapport with her students. Ms. Friedlin also noted misspelled words on posters in the classroom and noted that Respondent mispronounced a number of words and committed grammatical errors. Ms. Friedlin memorialized these observations in a Classroom Observation Instrument (COI) dated November 10, 1993 and in a narrative memorandum of that date. At formal hearing, Respondent put forth that the posters were purchased at her own expense and were not made by her, but she did not explain any satisfactory reason for allowing them to remain on display without correction. In Ms. Friedlin's professional opinion offered at formal hearing, the problem areas with Respondent's performance at Arlington Middle School were consistent with those she had observed in Respondent at Ed White High School the prior year but Respondent's overall performance had gotten worse. During the early part of 1994, Dr. Baker continued to observe Respondent on an informal basis and to discuss her problems with her. Again, he observed that Respondent was in denial concerning the deficiencies in her performance and the necessity to make improvements. Ms. Rodriguez observed disturbances similar to those of October 27, 1993 in Respondent's classroom on January 7, 1994 and January 11, 1994. On January 7, 1994, Ms. Rodriguez and Mr. Kemp went to Respondent's classroom in response to a call for assistance. Ms. Rodriguez discovered that one student had switched off the class lights on two occasions. This had triggered episodes of throwing textbooks across the room. At least one student was struck on the head by a textbook. Ms. Rodriguez memorialized this event in writing. On January 11, 1994, Ms. Rodriquez went to Respondent's classroom in response to a request from a security officer. Ms. Rodriquez found the classroom littered with paper. Respondent indicated that her home-room students had begun throwing paper and this behavior carried on into subsequent classes. Ms. Rodriguez memorialized this event in writing. On January 11, 1994, Dr. Baker provided Respondent with a letter expressing his continuing concern about her performance and his continuing willingness to work with her in developing another Success Plan and in providing her with assistance, such as the use of District level staff, to improve her performance. Dr. Baker also gave Respondent advance warning that he would be conducting another formal observation of her teaching prior to March 1, 1994. Ms. Rodriquez again observed Respondent's teaching performance on February 23, 1994, when she spent approximately 47 minutes of one class period in Respondent's classroom. Ms. Rodriguez again observed students talking while Respondent attempted to explain the lesson. Respondent's instructions were unclear. Little or no teacher-directed instruction occurred. Ms. Rodriguez memorialized these observations in a March 3, 1994 Classroom Observation Instrument (COI). According to Ms. Rodriguez, Respondent's performance as a teacher had deteriorated between her observation on October 21, 1993 and her observation on February 23, 1994, partly because Respondent most recently projected an attitude of defeat and was simply trying to get through the day. In Ms. Rodriquez's opinion based upon her education, training, and experience and her observation and contacts with Respondent, Respondent's teaching performance was incompetent. Bennie Floyd-Peoples was one of the Assistant Principals for Student Services at Arlington Middle School during the 1993-1994 school year. Ms. Peoples has a Bachelor's Degree in Home Economics, a Master's Degree in Home Economics with emphasis on early childhood education, a Master's Degree in teaching, and has taken course work in the area of educational leadership. She is certified in the Florida Performance Measurement System and is a trainer in that program. She has been employed by the Duval County School Board for a total of five years and has served as Assistant Principal for Student Services at Arlington Middle School during the last three years. Ms. Peoples went to the Respondent's classroom on 15 to 20 occasions during the 1993-1994 school year. On each occasion, Ms. Peoples observed a consistent pattern of classroom disruption, students being disrespectful and defiant to Respondent, students throwing paper, students walking around the classroom idly, and students arguing with each other. Ms. Peoples memorialized her observations in two memoranda to Principal Baker, dated October 14, 1993 and February 17, 1994 respectively. On February 24, 1994, Dr. Baker informed Respondent in writing that he would be conducting his formal observation on February 25, 1994 On February 25, 1994, Dr. Baker conducted a formal observation of the Respondent's classroom performance. In Dr. Baker's opinion, Respondent's performance continued to be unsatisfactory. While he did notice slight improvement in the area of knowledge of subject matter, he also noted a decline in Respondent's willingness to assume non-instructional responsibilities, such as due care of the equipment entrusted to her. The "Evaluation of Professional Growth of Teacher" which Dr. Baker completed on March 7, 1994 showed Respondent to be unsatisfactory in seven of the eight competencies rated therein and unsatisfactory overall. Respondent refused to sign the evaluation form. Dr. Baker continued to be concerned about the safety of Respondent and her students. He again expressed these concerns in a March 23, 1994 memorandum to Dr. Alvin White, Assistant Superintendent. Based upon Dr. Baker's recommendation, Respondent was removed from the classroom shortly thereafter. In Dr. Baker's opinion based upon his education, training, and experience, his personal observations of Respondent's performance, and the information related to him by his staff and others, Respondent was incompetent as a classroom teacher during the 1993-94 school year. In Dr. Baker's opinion, Respondent was afforded the opportunity of specific in-service training to correct the alleged deficiencies in her performance, but most, if not all offers of assistance, were refused. Dr. Baker's testimony to this effect and the supporting exhibits are accepted over Respondent's protests at formal hearing that she would have accepted more workshops if they were guaranteed to be during school hours and a substitute provided. Respondent attributed a portion of her problems with classroom management at Arlington Middle School to the students being "a little unusual than they had been for the previous years" and as being motivated by "another spirit . . . making them do it". Respondent also attributed a portion of her problems to physical deficiencies in her classroom at Arlington Middle School. The classroom was physically located between the band and chorus rooms. She testified that the classroom was "very noisy," that the room "sits into something like a hole," that the room had "something like an echo to it," and that the skylights in the room were closed off, which caused "strange things" to happen in the room. Respondent is a very devout Christian and speaks and writes with considerable religiosity. From the evidence as a whole, it appears that, in secular terms, Respondent felt that her Arlington Middle School classroom was inferior acoustically and had bad lighting, that the students' access to the light switch was uncontrollable, and that her lack of experience with middle school children, especially sixth graders who are more rowdy than the more mature high school students she was used to contributed to the discipline problems she had throughout the 1993-1994 school year. She also attributed student misbehavior to "toe tapping" caused by the music and noted that being an observer and monitor of indoor suspension had not fully prepared her for actually teaching the classes she was assigned at Arlington Middle School. She also believed sincerely that the damage to equipment occurring in the 1992-1993 school year at Ed White High School occurred during the times other teachers were in charge of the same classroom or occurred overnight when the room was used by others and that the damage to equipment at Arlington Middle School "just happened" because it was old and the students were rowdy. The overwhelming weight of the evidence is that the equipment damage in both schools could not have occurred at any time other than during Respondent's periods of responsibility. Despite some rumor of an ancient accidental death which caused the skylight of her classroom at Arlington Middle School to have been boarded up long ago, the room itself had been effectively used by other teachers. These other teachers experienced no unsolvable discipline problems, and they were able to function effectively with the same lighting and acoustics that perturbed Respondent. The greater weight of the credible evidence is that there was nothing inherently unusual or noisy about Respondent's classroom at Arlington Middle School and that if the band or chorus was heard through the adjoining walls on occasion, it was not loud enough to interfere with effective teaching. Overall, Respondent's classes represented an accurate cross-section of the students in the school. It may be inferred therefrom that Respondent received students no more predisposed to rowdiness than any others of their age group. In two of Respondent's classes, she received a new group of students four times a year. In the other three classes, she received a new group of students twice a year. It may be inferred therefrom that on each of these rotations, she had an opportunity to "start over" with a fair cross-section of students, untainted by whatever had gone wrong in her classroom in the previous grading period. The disciplinary problems experienced by Respondent were unique in both nature and degree from those presented by the same students in other classes under other teachers. She was certificated in the areas she was assigned to teach, and she should have been able to handle the classes assigned her. Respondent also seemed to attribute a portion of her problems to a conspiracy toward her, testifying that "it was a schemer towards me"; that Dr. Baker is her enemy; and that a student named James lied about her and then brought her a number of treats (which she accepted) because "his conscious must have bothered him really bad". Her opinion on these issues is unsupported. Respondent showed that at Arlington Middle School she had established a work program whereby her students rotated every ten days through other parts of the school to receive "grades" or commentaries on their performances by other instructional and administrative personnel and that most of the comments received were good. This learning experience was an optional part of the curriculum which she devised. It involved such things as students assisting with shelving books in the library or doing minor clerical work in the school office. Although the experience may have been valuable to individual students in giving them exposure to a variety of work tasks, Respondent did not directly observe or grade their work, and this innovation was not shown to promote the required curriculum, particularly the typing curriculum. Respondent's students' good behavior for other school personnel outside her classroom also does not demonstrate Respondent's classroom management skills. Respondent admitted that some of the incidents testified to by Petitioner's witnesses and memorialized in the documentary evidence did occur, but she minimized them or did not recognize them as dangerous, as disruptive to the educational process, or as her responsibility. For example, Respondent testified that, "There was cases in my classroom where books was thrown when he cut the light off, but it wasn't that many time. I mean three or four times." Similarly, in discussing an incident where a student named "Waled" had chipped his tooth during a classroom disturbance, Respondent testified "Things like that happen in the classroom." She took no responsibility for students setting a fire outside her classroom window (see Findings of Fact 29-30). She took no responsibility for students lifting her wig off her head in the hallway on the way back from lunch and playing with the wig with resultant noise and disorder. She felt she was not in control of the latter situation and that children just do such things. She expressed herself as unable to control tardiness which disrupted class concentration and as never refusing a child who wanted a hall pass to go to the restroom, no matter how many students wanted to go there simultaneously. These instances of denial are, in themselves, evidence of her incompetence to teach. Petitioner participated in some of the observations of other teachers established by Mr. Poppell during the 1992-1993 school year, but no meaningful improvement in her performance could be measured. She was transferred to a different school in order to permit her improvement with a "fresh start." (See Findings of Fact 21-22). However, instead of improving, her classroom management deteriorated. Her memorandum to Mr. Poppell dated January 19, 1993 indicating that Jane Friedlin's visit to observe her at Ed White High School "wasn't welcome" (See Finding of Fact 17), her declining Mr. Baker's suggestion that at Arlington Middle School they proceed with Respondent observing other classes and attending workshops again in the 1993-1994 school year, and her comments at formal hearing that she did not acknowledge that there were correctable problems with her teaching confirm that further attempts to help her were made but did not improve the situation.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Duval County School Board discharging Respondent from her employment as a tenured teacher within the Duval County School System for incompetency. RECOMMENDED this 31st day of January, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 31st day of January, 1995. APPENDIX TO RECOMMENDED ORDER 94-4272 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: With minor fine-tuning and additional material to more closely conform to the competent, credible evidence as a whole, all of Petitioner's 57 proposed findings of fact are accepted. Respondent's PFOF dated November 21, 1994 (See "Preliminary Statement" for information on another rejected proposal). The paragraphs are numbered and are described as best the hearing officer can. First paragraph: rejected as introductory only. Indented paragraph: rejected as attempting to change finalized annual unsatisfactory evaluations to satisfactory. Also, rejected as not supported by the record. Next indented paragraph: rejected as not a finding of fact but as a request to be reinstated to employment at the highest administrative level now vacant. Next indented paragraph: rejected as not a finding of fact but as a prayer for money damages not provided for by statute or rule. Second regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation. Next indented paragraph: Rejected as not supported by the greater weight of the credible competent evidence. Next indented paragraph: Rejected as not supported by the greater weight of the credible competent evidence or as a prayer for relief. Next indented paragraph: Rejected as not supported by the greater weight of the credible competent credible evidence. Third regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation. Next indented paragraph: This is Respondent's complaint that she should have been allowed additional in-service workshops during the school day in both years. It is addressed as needed in Findings of Fact 22, 24, 25, 28, 56, and 71. Next indented paragraph: This is appears to complain of any standardized oversight of teachers and students by administrators and is rejected as mere opinion contrary to the authority of law. Next indented paragraph: This is replete with religiosity but is not even a complete sentence. It is rejected as incomprehensible. Next indented paragraph: Rejected as irrelevant and/or unproven. Next indented paragraph: This is Respondent's complaint that Dr. Baker was her enemy for reasons never specified. It is covered as needed in Finding of Fact 69. Fourth regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation. Next indented paragraph: This is Respondent's assertion that her students passed or improved on standardized educational tests. Her assertion was not proven, and is not supported by the record. Therefore, this proposal is rejected. The topic is covered as needed in Finding of Fact 68. Fifth regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation. Next indented paragraph: This is an accusation of perjury or a religious diatribe. In either case, it is unsupported by the record or by the candor and demeanor of the witnesses and is rejected. Sixth regular paragraph: This is either a prayer for relief, a Biblical reference, or both. Rejected as irrelevant argumentation. The final closing paragraph is conclusory only and rejected. COPIES FURNISHED: Gary Eckstine, Esquire 600 City Hall 220 East Bay Street Jacksonville, Florida 32202 Clementine Johnson 3104 West 12th Street Jacksonville, Florida 32205 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Dr. Larry Zenke, Superintendent Duval County School District 1701 Prudential Drive Jacksonville, Florida 32207-8082
The Issue The issue is whether Respondent is guilty of failing to make reasonable effort to protect a student's safety, in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a).
Findings Of Fact Respondent holds Florida Educator Certificate 646554 in the area of Mentally Handicapped. For the past six or seven years, Respondent has been employed as an ESE teacher at Windy Ridge. The record contains no evidence of prior discipline of Respondent's educator certificate, but the District suspended her for five days without pay for the three incidents that are described below. For the 2012-13 school year, Respondent and four paraprofessionals taught a class of seven ESE students. The paraprofessionals performed tasks assigned to them by Respondent. Absences on December 4, 2012, reduced the class to five ESE students, Respondent, and two of the four paraprofessionals regularly assigned to Respondent's classroom. The principal assigned a substitute for one of the two absent paraprofessionals, so four adults were supervising five students on that day. One of the five students present on December 4 was D.R., who was nine and one-half years old and suffered from a "significant cognitive disability." As documented by his Individual Educational Plan (IEP), which is dated November 6, 2012, D.R.'s mother was "very concerned" about the safety of her son, who was tube-fed, "non-verbal," and able to follow only "some simple one-step commands." The IEP warns that D.R. was in a "mouthing stage," meaning that he put "everything" in his mouth for sensory input. As described in his social/developmental history, which is dated November 1, 2012, D.R.'s health was "fragile." The three incidents at issue took place during approximately one hour at midday on December 4. The first incident took place at 11:10 a.m. Serena Perrino, a District behavior trainer, was sitting alone in Ms. Barnabei's classroom, which is next to Respondent's classroom. The two classrooms are joined by the two teachers' offices, so it is possible to walk between the classrooms without entering the hallway. On a break, Ms. Perrino had turned off the lights and was on the computer at the front of Ms. Barnabei's classroom. While facing the computer monitor, Ms. Perrino heard a noise behind her, turned around, and saw D.R., by himself, seated on the floor playing with a toy. Ms. Perrino knew that he belonged in Respondent's classroom. Without delay, Ms. Perrino walked D.R. toward his classroom, but, as they were passing through the teachers' offices, Ms. Perrino and D.R. encountered one of Respondent's paraprofessionals, who said that she was "just coming to get him, thanks." The second incident took place between 11:30 a.m. and noon. Bernadette Banagale, the substitute paraprofessional assigned to Respondent's classroom on that day, was eating lunch in a small outside courtyard that is located at the end of the hallway where Respondent's classroom is located. Ms. Banagale saw D.R., by himself, enter the courtyard from the doors at the end of the hallway. Ms. Banagale approached D.R. and, with some difficulty, walked him back to Respondent's classroom where she left him in the custody of the other two paraprofessionals, Susan Brown and Delta Porter, but not Respondent, who was not in the classroom when Ms. Banagale returned the child. The third incident took place shortly after noon. Cathy Zimmerman, a teacher, was sitting in a classroom eating lunch with another teacher. Looking out the window of the classroom, Ms. Zimmerman noticed D.R. in the adjoining breezeway, which divides the building from the school parking lot. Ms. Zimmerman did not know D.R., nor where he belonged, but she saw that he was unescorted. Approaching D.R. in the breezeway, Ms. Zimmerman guided him back through the doors leading to a hallway that, after a short distance, intersects the hallway where Respondent's classroom is located. As she was walking the child into the building, Ms. Zimmerman directed the teacher with whom she had been having lunch to enter the nearest classroom to see if anyone could identify the child. As directed, the other teacher entered Ms. Barnabei's classroom, where she found Ms. Perrino, who again took custody of D.R. and immediately returned him to Respondent's classroom where Ms. Perrino found Respondent and one or more paraprofessionals. In an effort to prove that Respondent failed to make reasonable effort to protect D.R., Petitioner offered two pieces of evidence: during direct examination, the principal prescribed that a classroom teacher is required to know at all times the location of her students, and, during cross-examination, Respondent agreed with the metaphor supplied to her by Petitioner's counsel that a classroom teacher is the "captain of the ship." The principal's prescription and Respondent's metaphor constitute the entirety of Petitioner's explicit analysis of the reasonableness of Respondent's effort to protect D.R. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the first incident. The principal's testimony is inapt because Petitioner failed to prove that a paraprofessional did not always know D.R.'s location; that Respondent failed to protect D.R. when a paraprofessional knew his location, regardless of whether Respondent knew his location; and that D.R.'s safety was compromised at any time during the few seconds that he was in the adjoining classroom. Respondent's testimony is inapt because Petitioner did not prove that a paraprofessional failed to make reasonable effort to protect D.R.'s safety, which would be a pre-condition to attributing this failure to the captain of the ship, as discussed in the Conclusions of Law. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the second incident. Petitioner failed to prove that Respondent was in the classroom at the time of D.R.'s escape or at any time during his ensuing absence from the classroom and failed to prove that Respondent's absence from the classroom was unauthorized. As for the absence of Respondent from the classroom at the time of the escape in the second incident, the strongest evidence is Respondent's written statement to this effect. Other evidence tends to support Respondent's written statement that she was not in the classroom at the time of the escape. Ms. Banagale's scheduled lunch was 11:30 a.m. to noon, and nothing in the record suggests that the substitute paraprofessional took her lunch at other than her scheduled time. The distance between the front door of Respondent's classroom and the exterior doors leading to the courtyard is the width of the single classroom that separates Respondent's classroom from these exterior doors, so it would not have taken D.R. long to travel from the front door of the classroom to the exterior doors leading to the courtyard. Respondent's scheduled lunch was 11:00 a.m. to 11:30 a.m., but Respondent testified that she was behind schedule when she took her lunch. She also testified that she returned to the classroom "a little after noon." Nothing in the record indicates how long Respondent took for lunch, but, if she took all of her allotted time, she likely left the classroom shortly after Ms. Banagale, leaving a very narrow window for D.R. to escape, if he were to do so after Ms. Banagale's departure, but before Respondent's departure--a fact that Petitioner has not established. The only evidence suggesting that Respondent was in the classroom at the time of D.R.'s escape comes from Respondent's testimony at the hearing to this effect. Notwithstanding the inculpatory nature of Respondent's testimony, it is impossible to credit it. Provided nearly two years after the incident, Respondent's testimony was, at times, confused and unclear, but her written statement is clear and straightforward. It would appear that, based on the findings below concerning the third incident, Respondent may have confused the second and third incidents. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the third incident. The third incident is more complicated than the first and second incidents because it is more difficult to determine exactly what Petitioner proved and the extent to which the material factual allegations extend to the proof of the third incident.2/ At minimum, Petitioner pleaded3/ and proved that D.R. escaped from the classroom, and Respondent was in the classroom at the time of the escape. Respondent gave a written statement admitting that she was present when D.R. left the classroom and that she was unaware of his departure "because my back was turned by me working with another student on the computer, [as D.R.] left out the rear door." At the hearing, Respondent testified confusingly, possibly suggesting that she was at lunch or in planning when D.R. escaped in connection with the third incident, but any such exculpatory testimony is discredited for the same reason that her inculpatory testimony regarding the second incident was rejected. As was true of the written statement in connection with the second incident, other evidence tends to support Respondent's written statement in connection with the third incident. As noted in the discussion of the second incident, Respondent returned to the classroom "a little after noon." At this point, Respondent, Ms. Banagale, and Ms. Brown were in the classroom. Ms. Porter's scheduled lunch was from noon to 12:30 p.m., and nothing in the record suggests that she did not take her lunch as scheduled. As discussed in the Conclusions of Law, analysis of whether Respondent failed to meet a reasonableness standard may be facilitated by consideration of the burden of taking precautions sufficient to prevent an escape, the probability of an escape, and the magnitude of the threat to D.R.'s safety, if he escaped. The burden of taking additional precautions was not insubstantial. The classroom has three exits, and D.R. used each of them in connection with the three incidents. In the first incident, as noted above, D.R. used a side exit through the teachers' offices to get to the adjoining classroom of Ms. Barnabei. In the second incident, D.R. used the front door to get to the courtyard. In the third incident, D.R. used the rear door to access the adjoining breezeway, where Ms. Zimmerman found him no more than 75 feet from the rear door. Evidence suggests that locking the doors at each of these exits was forbidden, possibly due to fire regulations. Although three adults were supervising only five ESE students at the moment of D.R.'s escape in the third incident, the paraprofessional who normally taught D.R. one-on-one at the time of the escape was absent. It is not entirely clear how long Respondent was in the classroom before D.R. escaped, but Respondent was performing instructional duties at the moment of the escape, so additional attention by Respondent to security would have meant reduced instruction, at least of the child whom she was teaching one-on-one at the time of the escape; this adds to the burden of taking escape precautions.4/ The probability of D.R.'s escape was demonstrably very high, as evidenced by his three escapes in a single hour on December 4. The magnitude of the threat to D.R.'s safety from an escape is difficult to assess. D.R. was a medically fragile, highly vulnerable child. However, he suffered no injuries in any of the three escapes that are the subject of this case. The magnitude of the threat posed to D.R.'s safety from escaping was thus low. Considering that the burden of taking additional precautions was moderate, the probability of escape was high, and the magnitude of threat to D.R.'s safety from an escape was low, it is impossible to find that Petitioner proved by clear and convincing evidence that Respondent failed to make reasonable effort to protect D.R.'s safety by preventing the escape in connection with the third incident. The analysis in the preceding paragraphs focuses on Respondent's failure at the moment of D.R.'s escape, not on the duration of his absence from the classroom and any ongoing failure to notice that the child was missing from the classroom. As explained in the Conclusions of Law, Petitioner did not plead these failures as grounds for disciplining Respondent, but, in an abundance of caution, the following findings address these alternative grounds for determining that Respondent failed to make reasonable effort to protect D.R.'s safety in connection with the third incident. There is no direct evidence of how long D.R. was out of the classroom in connection with the third incident. There is only one point in time established by direct evidence: Ms. Zimmerman first saw the child at 12:10 p.m. There is no direct evidence of when D.R. escaped from the classroom, nor could there have been such evidence from the known witnesses. Ms. Zimmerman's written statement notes that all of the physical education teachers, which may include her, were in the area of the breezeway from noon to 12:07 p.m., and they never saw D.R. Ms. Zimmerman's statement implies that someone would have seen D.R. if he had been anywhere in the breezeway by himself. Although Ms. Zimmerman could have estimated how long she had the child before turning him over to Ms. Perrino, no one asked her to do so.5/ And there is no other direct evidence of how long Ms. Zimmerman had the child. Based on the evidence cited in the preceding paragraph, D.R. escaped the classroom between 12:08 p.m. and 12:10 p.m. and returned to the classroom between 12:11 p.m. and 12:13 p.m. Limiting inferences to those supported by clear and convincing evidence, as discussed in the Conclusions of Law, the earliest that D.R. left the classroom was 12:09 p.m., and the latest that D.R. returned to the classroom was 12:11 p.m. This means that Petitioner has proved that D.R. was absent from the classroom for no more than two minutes: one minute by himself and one minute accompanied by Ms. Zimmerman. The burden of taking adequate precautions to detect the child's absence and return him to the safety of the classroom is lower than the burden of preventing the escape, which can occur in a few seconds, although it is difficult to assess what exactly would have been required of Respondent to conduct a search or, by notifying school administrators, to cause a search to be conducted. The burden of preventing an escape is much greater than the burden of noticing, within two minutes, that a child is missing from a five-student classroom. The magnitude of the threat to D.R.'s safety rises the longer that he is out of the classroom, especially unescorted. Presenting a closer case than the pleaded case involving only an escape, the claim that Respondent failed to make reasonable effort, when directed to the length of time that D.R. was out of the classroom, requires consideration of any effort that Respondent made during D.R.'s absence. The duration of D.R.'s absence is thus linked to whether Respondent noticed that D.R. was missing and, if so, what Respondent did upon discovering that he was gone. As discussed in the Conclusions of Law, because inferences are limited to those supported by clear and convincing evidence, Petitioner has not proved that Respondent and the paraprofessionals failed to notice that D.R. was missing. There is no direct evidence that Respondent and the paraprofessionals failed to notice that D.R. was missing from the classroom. The record lacks admissions from Respondent and the two paraprofessionals in the classroom during the third incident that they were unaware of D.R.'s absence.6/ Both Ms. Zimmerman and Ms. Perrino testified that they did not see anyone in the vicinity of the classroom looking for D.R., and this testimony is credited, but supports no more than an inference by a preponderance of the evidence that the adults in the classroom were not looking for the child, and does not support even an inference by a preponderance of the evidence that the adults in the classroom had failed to notice that D.R. was missing. Ms. Perrino testified that when she returned D.R. to the classroom, none of the adults present seemed to have realized that the child had been missing. This testimony is credited, but, lacks important detail, including on what this testimony is based and whether this observation applied to Respondent, so as to support no more than an inference by a preponderance of the evidence that the adults had not noticed that D.R. was missing. Thus, even if Petitioner has pleaded the duration of D.R.'s absence and a failure to notice the absence of the student as grounds for determining that Respondent failed to make reasonable effort to protect his safety, Petitioner failed to prove these claims by clear and convincing evidence
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of December, 2014, 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 1st day of December, 2014.
The Issue The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c), or (g), Florida Statutes (2013),2/ and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent holds a master's degree in early childhood education and is a teacher certified by the State of Florida in the area of elementary education. Respondent is also certified to teach language arts and social studies in middle school. At all times material to the allegations in this case, Respondent was employed by the Sarasota County School District (SCSD). During the 2005-2006, 2006-2007, 2009-2010, and 2010- 2011 school years, Respondent taught kindergarten at North Port Toledo Blade Elementary School (Toledo). During the 2007-2008 and 2008-2009 school years, Respondent taught first grade at Toledo. Respondent executed a professional service contract of employment for the SCSD on July 1, 2008, approximately a month before the start of the 2008-2009 school year. TEACHER EVALUATIONS In the SCSD during the applicable time, the instrument used for teacher evaluations was called the Professional Rubrics Investing and Developing Educator Excellence (PRIDE) performance evaluation system which contains a Florida Performance Measurement System (FPMS) Summative Observation Instrument, a Performance Improvement Plan (PIP) Checklist, and a PIP Classroom Instructional Level 1 & 2 form. Utilizing the PRIDE, SCSD teachers were required to demonstrate competency in four Domains. Each domain encompassed a specific aspect of teaching: I- Creating a Culture for Learning; II- Planning for Success; III- Instruction and Assessing Student Achievement; and IV- Communicating Professional Commitment; and each domain had several subparts. During an observation/evaluation, a teacher could receive one of four ratings: accomplished, developing, needs improvement, or unsatisfactory. A teacher who receives two or more "unsatisfactory" ratings in PRIDE domains I, II, or III, could be subject to termination from the SCSD. Following classroom observations, should a school administrator determine there are concerns regarding a teacher's performance, a PIP conference (conference) may be called. Those attending the conference are the teacher, a union representative,6/ the school's administrator(s), and a district representative. During the conference, the school's administrator discusses the classroom observations of what was working or not working in the teacher's classroom. The PIP is fully explained to the teacher. A PIP is for teachers who have been identified by their school administrators as having some performance challenges. Its purpose is to provide confidential support via a coach to those teachers who have been identified as performing below acceptable standards. Other support services that can be provided to a teacher include: an opportunity to observe a highly effective similar classroom of students; additional professional development courses; and regularly scheduled PIP conferences to review what has been observed between each conference. The PIP goal is to assist the teacher to become an effective and efficient teacher in the classroom. A PIP is generally established for two school years; however, it may be shortened if the teacher demonstrates improvement in the areas of concern. Once a PIP is in place, the school principal assumes the responsibility of observing and evaluating the teacher. After the conference, a coach is identified, contacted and asked to serve as the teacher's coach. As the PIP progresses, that coach and the school's principal are to provide feedback to the teacher. However, the parties decide the manner in which the feedback is to be provided. There are no set directions for when the principal must provide feedback, except at the regularly scheduled PIP conferences. In the event the teacher's performance has not improved after having a coach and time, an administrator (or administrators) from another school may be called in to observe and evaluate the teacher. This is to ensure that the teacher is evaluated by a neutral third party who is not part of the school's administration. Prior to the PRIDE system, the SCSD used a different evaluation system: the Teacher Performance Appraisal System (TPAS). TPAS provided for pre- and post-observation conferences with the teachers regarding the observations. This system provided timely feedback to the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(d), Respondent be placed on probation for a period of at least three years with such conditions as the Education Practices Commission may specify. DONE AND ENTERED this 23rd day of May, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 23rd day of May, 2014.
