The Issue The issue is whether Petitioner may terminate the professional service contract of Respondent due to a failure to correct performance deficiencies during the 90-calendar-day probationary period.
Findings Of Fact Respondent entered the teaching profession after working 17 years as a bartender. She earned her undergraduate degree in education--specifically, learning disabilities and varying exceptionalities--and obtained her first teaching job at Gulfstream Elementary School in 1995. For her first eight years at Gulfstream, Respondent taught a physically impaired class. These are small classes of less than ten students with health or medical disabilities. Many of the students cannot walk or talk. With a paraprofessional and sometimes a fulltime aid, Respondent taught substantially the same students from year to year. The focus of much of the instruction was upon daily living skills, such as reading the signs on restrooms and businesses. In 1996, Respondent developed inoperable Stage IV nasopharyngeal carcinoma. Eight months of radiation therapy scarred Respondent's airway. When Respondent returned to school after a five-month leave of absence, she, like many of her students, wore a feeding tube and relied on a vocal amplification device. Respondent made the most of these characteristics that she now shared with some of her students, encouraging them to overcome their disabilities as she was doing. In the physically impaired class, Respondent taught most of the students on a one-on-one basis. Rarely did she have to address the entire class as part of classroom instruction. For this reason, Respondent was little handicapped by her speech difficulties, which arose due to the cancer treatment. Even today, loud speech is nearly impossible for Respondent, who, to generate speech, must press against her throat to produce a gaspy speech that requires close attention to understand. A new principal arrived at Gulfstream for the 2002-03 school year. The new principal, who had previously been an assistant principal for eight years and a teacher for nine years, found Respondent's performance unsatisfactory in several respects. Respondent was often late arriving to school and failed to perform her duties on the bus ramp. Respondent often left her paraprofessional alone with the physically impaired class. To monitor the behavior of the child, Respondent sometimes brought her high-school aged daughter to school without permission. Overall, the principal found that Respondent seemed unenthusiastic about teaching. Believing that Respondent might have been depressed, the principal referred Respondent to the Employee Assistance Program. Thinking that a change in assignment might rekindle Respondent's enthusiasm for her job, for the 2003-04 school year, the principal switched the assignments of Respondent and another teacher, so that the other teacher would teach Respondent's physically impaired class, and Respondent would teach a varying exceptionalities class. Neither teacher had requested a new assignment. Respondent's varying exceptionalities class began the 2003-04 school year with 14 students. Eventually, the principal reduced the class to nine students. Respondent had the help of only a part-time paraprofessional. The wide range of cognitive abilities of the students meant that some students could only identify their names in print, and some students could read and write. Students in the varying exceptionalities class were in several classifications, such as educably mentally handicapped, traumatic brain injury, and autistic. By sometime in October 2003, the assistant principal had twice observed Respondent teaching her class. The assistant principal had concerns about Respondent's classroom management and recordkeeping. The assessments and evaluations in this case are based on the Petitioner's Professional Assessment and Comprehensive Evaluation System (PACES). In conjunction with the statutory 90-calendar-day probationary period, as discussed in the Conclusions of Law, the PACES assessments follow a format. A PACES-trained evaluator conducts an initial observation not of record. If the teacher fails to meet standards, the evaluator goes over the findings with the teacher, offers a Professional Growth Team to provide assistance in eliminating any deficiencies, and advises that she will conduct another evaluation in a month. If the teacher meets standards on the second evaluation, which is known as the first observation of record, the teacher reverts to the normal evaluation scheme applicable to all teachers, and the first negative observation is essentially discarded. If the teacher fails to meet standards on the first observation of record, she is placed on performance probation for 90 days. The evaluator conducts a Conference for the Record and gives the teacher a Professional Improvement Plan (PIP). During the probationary period, the evaluator conducts other observations, and, at the end of the period, the evaluator conducts a final observation. If the teacher still fails to meet standards, then the evaluator conducts a confirmatory observation within 14 days after the end of the probationary period. If the teacher still fails to meet standards, the principal may recommend termination to the Superintendent. PACES assessments cover six domains: Planning for Teaching and Learning (Domain I), Managing the Learning Environment (Domain II), Teacher/Learner Relationships (Domain III), Enhancing and Enabling Learning (Domain IV), Enabling Thinking (Domain V), and Classroom-Based Assessments of Learning (Domain VI). Each of these domains comprises three to five components, for which the evaluator determines whether the teacher meets standards. If the evaluator determines that the teacher fails to meet standards as to a component, the evaluator circles a listed indicator, so that the teacher may readily identify authoritative sources of information, such as the PACES binder provided to each teacher or videotapes in the District office, that will assist her in curing a particular deficiency. The assistant principal conducted the initial observation not of record on October 14, 2003. She determined that Respondent failed to meet standards for 18 of the 21 components. Respondent met standards only in Components III.A, IV.C, and VI.A. Respectively, these are Interpersonal Relations, which is the teacher's respect for the students; Resources for Learning, which is the teacher's use of teaching aids and learning materials; and Monitoring Engagement and/or Involvement in Learning, which is the teacher's monitoring of the student's engagement during learning tasks. Among the more significant deficiencies reflected in the October 14 evaluation are that Respondent lacked lesson plans and failed to manage the learning environment. To help with these and other deficiencies, the assistant principal offered Respondent a Professional Growth Team and referred her to her PACES binder, which would describe each deficient item and suggest strategies to eliminate each deficiency. For her part, Respondent had tried to deal with her new assignment by grouping the children, where appropriate, by cognitive ability. In September or October, she was able to send one student to regular education. On November 5, 2003, the assistant principal returned to perform the first observation of record. She found Respondent reading a Thanksgiving story to the eight students who were present in her class. Respondent would read one sentence and ask a question about it. By using this approach, Respondent took one hour to read a story that should have taken five minutes to read. Each time that she stopped and asked a question about the preceding sentence, Respondent undermined the continuity of the story. Also, all of her questions tested the students' memory; none of them required higher-order thinking, as would be required by questions asking how or why something happened. Despite these shortcomings in Respondent's teaching, the assistant principal determined that Respondent had met standards in all of Domains I, II, III, and VI. However, Respondent failed to meet standards in all components of Domains IV and V, including the one component in Domain IV for which she had previously met standards. However, Respondent performed considerably better in this observation than in the previous observation--meeting standards in 13 of 21 components as opposed to meeting standards in 3 of 21 components three weeks earlier. In the ensuing Conference for the Record, the assistant principal prepared a PIP for Respondent and again recommended that she take advantage of the Professional Growth Team for assistance in eliminating the deficiencies. Dated November 14, 2003, the PIP is a detailed documentation of each deficiency noted in the November 5 observation. The November 14 PIP describes what Respondent did or did not do, as to each deficiency. The PIP also contains specific recommendations to eliminate each deficiency. The number of deficiencies is misleading, at least as an indicator of the scope of the teaching that was subject to the evaluation. The Thanksgiving story, described above, spawned all eight of the observed deficiencies. Respondent's reliance exclusively upon simple recall questions yielded five deficiencies. (One of these deficiencies also relies on Respondent's failure to correct a child who replied to the question of what sound that turkeys make, by answering, "quack, quack." Absent more context, it is possible that Respondent's failure to correct this answer was an attempt not to reward attention-getting behavior.) One of the remaining three deficiencies criticizes Respondent for introducing the Thanksgiving story with an open-ended question, "This is November. What do you think happens in November?" Another deficiency, which focuses on the one-sentence, one-question approach of Respondent to the story, faults Respondent for omitting hands-on activities. The last deficiency notes that Respondent held up a small piece of paper showing the months of the year, but she failed to post the paper for the children to see. (This deficiency implies that Respondent's classroom lacks a posted calendar.) The detail of the November 5 PACES evaluation and November 14 PIP are undermined by the oddly narrow factual basis upon which they rest. Intended as a comprehensive statement of the deficiencies of an experienced teacher, these documents reveal that Petitioner has placed Respondent on probation because of an awkward reading of a Thanksgiving story to eight students over a period of about one hour. On December 11, 2003, the principal performed an observation. The principal found that Respondent met standards in Domains I, II, III, V, and VI, but not in three components of Domain IV: Initial Motivation to Learn, Teaching Methods and Learning Tasks, and Clarification of Content/Learning Tasks. Respectively, these components involve the identification of the learning objective, the use of logically sequenced teaching methods and learning tasks, and the use of different words or examples when clarification is required. The two components within Domain IV for which Respondent met standards are: Resources for Learning and Knowledge of Content and Pedagogy. The former component involves the use of learning materials to accommodate the range of individual differences among learners, and the latter component involves the creation of an opportunity to allow different learners to learn at different cognitive levels. The basis of the deficiencies was in Respondent's presentation of another story, Little Miss Muffet, although, this time, the problems centered more around her lead-in and follow-up activities. The PIP, dated December 17, 2003, which the principal prepared, notes that the pace of a writing activity worksheet was too slow for four of 11 students, who sat with nothing to do for ten minutes while waiting for their peers to finish; Respondent failed to correct a student who answered the question, "what are you afraid of," with "sock" (perhaps the same child who had said that turkeys quack); Respondent failed to correct a student who said that a paper was missing words when it was missing only letters; and Respondent failed to identify tasks associated with the story that would challenge all of the students, although Respondent used two worksheets-- one with missing words (presumably for the higher-functioning group) and one with missing letters (presumable for the lower- functioning group). On February 4, 2004, the assistant principal performed the next observation. She found that Respondent met standards in Domains I and III. She found that Respondent failed to meet standards in Components II.D, III.A, IV.A, IV.B, and VI.B. Respectively, these are Managing Environment in Learning, Interpersonal Relations, Initial Motivation to Learning, Teaching Methods and Learning Tasks, and Informal Assessment. During this observation, Respondent read a story on how to build a house. The reading level of the story was at least third-grade, but the students were in kindergarten and first grade. For 40 minutes, Respondent used actual house blueprints as a visual aid. As another visual aid, Respondent used blocks to depict a house, but she lacked sufficient blocks to finish the project. The story took one hour when it should have taken ten minutes. Consequently, students were out of their seats and trying to find something to do. On February 10, the assistant principal prepared a PIP. Although the contents of this PIP were not dissimilar to the contents of the previous PIPs, one new deficiency was Component III.A, Interpersonal Relations. The notes in the February 10 PIP state: "One learner was ridiculed by the teacher making remarks about her behavior to the classroom paraprofessional. Her remarks included, 'She's totally off the wall' and 'She has been horrendous today.' She also said to other learners not paying attention, 'I'm not going to talk to the air' and 'I'm waiting in case you didn't notice.'" The comments to the individual student were sarcastic and derogatory. In general, the principal found Respondent to be more enthusiastic in the 2003-04 school year than she had been in the previous school year. Respondent showed an improved attitude, but her classroom remained disorganized. Respondent had received considerable assistance from her Professional Growth Team, but the principal concluded that Respondent had still failed to meet standards. From Respondent's perspective, she felt that the principal had prejudged her and was running through the 90-calendar-day probationary period as an empty exercise. Respondent became increasingly nervous, as she repeatedly tried, and failed, to please the principal and assistant principal. At one point during the 90 days, Respondent restated her desire for a transfer, as she had made such a request the prior summer when she had learned of her new assignment, but the principal refused to give the request any consideration or determine if a transfer were feasible. At least once during the 90 days, Respondent's union representative asked the principal to transfer Respondent, but the principal refused, again without giving the request any consideration. In the meantime, Respondent's difficulties in the varying exceptionalities classroom were exacerbated by the removal, by October 2003, of her voice amplification system. On March 2, 2004, the principal, having determined that the 90 calendar days had expired, performed what she believed was the confirmatory observation. She found that Respondent failed to meet standards in eight components in Domains I, II, IV, and VI. Two days later, the principal informed Respondent that she would be recommending that the Superintendent terminate Respondent's professional service contract. Unfortunately, the principal had miscalculated the 90 days. Learning of this error, the principal discarded the March 2 evaluation and performed a new confirmatory observation on March 14 and again found that Respondent failed to meet standards. Two weeks later, Respondent failed to meet standards in six components in Domains II, IV, and V. Only three of the six deficiencies covered the same components in the March 2 observation: Components II.D, II.E, and IV.D, which are, respectively, Managing Engagement in Learning, Monitoring and Maintaining Learner Behavior, and Knowledge of Content and Pedagogy. In general, these were deficiencies at the start of the 90-day probationary period, but were eliminated during the 90-day probationary period, only to return again at the end. Following the March 14 confirmatory observation, the principal recommended that the Superintendent terminate the professional service contract of Respondent. On March 19, 2004, the Superintendent advised Respondent that he was going to recommend to Petitioner that it terminate her contract, and, on April 14, 2004, Petitioner did so. A recurring issue in this case is what is meant by failing to meet standards and, more importantly, unsatisfactory performance. Based on the testimony of Petitioner's witnesses, Petitioner contends that the failure to meet any single component within any of the domains of PACES is the failure to meet standards, and a failure to meet standards is invariably unsatisfactory performance, sufficient to place a teacher on 90- calendar-day performance probation or, if already on performance probation, sufficient to terminate a professional service contract. However, the PACES form does not so indicate, nor do Petitioner's online rules, of which the Administrative Law Judge has taken official notice. Petitioner has failed to prove what is an unsatisfactory performance under the PACES evaluation system. Absent the adoption of a rule to this effect, the isolated omission of a teacher, during a single observation, to provide suggestions to improve learning (Component VI.C) or to start a class or lesson precisely on time (Component II.A) would not constitute unsatisfactory performance, at least for the purpose of initiating the 90-calendar-day probationary period or terminating the professional service contract of a teacher already on performance probation. In this case, undermining the observations of the principal and assistant principal, especially where they appear to be based on discrete failures by Respondent, are the facts that neither supervisor has any significant training in exceptional student education, the principal has no experience teaching in exceptional student education, and the assistant principal has limited experience in teaching exceptional student education. By granting Petitioner's Motion for Official Recognition, the Administrative Law Judge acknowledges that, by letter dated September 24, 2001, the Florida Department of Education has approved PACES. (The identification of PACES is missing from the letter, but the Administrative Law Judge accepts the representation of Petitioner's counsel that PACES was the subject of this letter.) However, this letter approves PACES on its face, not as applied, and may have been based on more than two-page PACES evaluation form. The present record contains only the two-page form and testimony, unsupported by any documentation, that a single deficiency means that a teacher fails to meet standards and may be placed on probation, if the deficiency arises when the teacher is not on probation, or may be terminated, if the deficiency, even if different from the one that initiated probation, is present at the confirmatory observation. The record does not document the extent to which Respondent was in attendance at school during her 90-calendar- day probationary period. By her count, Respondent missed seven or eight workdays due to illness. Petitioner's calculation does not account for these missed days, and, if it had, the second confirmatory observation was premature too. The record contains some evidence of student achievement. As noted above, one student was transferred early in the 2003-04 school year from Respondent's varying exceptionalities class to a regular education classroom, but the proximity of this event to the start of the school year suggests that the student was probably misclassified at the start of the year. The mother of another student testified that Respondent helped her daughter make considerable academic progress. The student had undergone a tracheotomy and, consequently, speech delay. While in Respondent's class, the student was eager to attend school and learned to write her name for the first time. For the first time in school, the student was progressing. When the mother learned that Respondent was being terminated, she tried to contact the principal, but the principal declined to see her, claiming it was a personnel matter and implying that a parent had no role in such matters. The record contains the individual education plans (IEPs) of nine students. Typically, IEPs are prepared in the spring of each year, and, prior to the preparation of the next year's IEP, the IEP team closes out the preceding IEP by marking the extent to which the student has achieved the goals of his IEP. The IEP team also indicates progress during the year with respect to specific goals. A mark of "1" means mastery of the goal, a "2" means "adequate progress made; anticipate meeting goal by IEP end," a "3" means "some progress made; anticipate meeting goal by IEP end," and a "4" means "insufficient progress made; do not anticipate meeting goal by IEP end." The last relevant marks for some of the IEPs were January 2004, but some of them bore marks for March 2004. For all of the IEPs, exclusive of physical or occupational therapy, with which Respondent was not substantially involved, 11 goals were marked 2, 39 goals were marked 3, and 15 goals were marked 4. Five of the nine students for whom Petitioner produced IEPs received a mark of 4 on at least one goal in his or her IEP. But 11 of the 15 4's went to two students: one had four 4's, one 3, and one 2; and the other had seven 4's, two 3's, and one One student had two 4's, but also six 3's. Another student had one 4 and six 3's, and the fifth student had one 4 and three 3's. Thus, only two of the nine students were not making satisfactory progress while Respondent was teaching the class.
Recommendation It is RECOMMENDED that Petitioner enter a final order rejecting the Superintendent's recommendation to terminate Respondent for unsatisfactory performance during the 2003-04 school year. DONE AND ENTERED this 26th day of October, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2004. COPIES FURNISHED: Dr. Randolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
The Issue The issue is whether Petitioner properly determined that Respondent's employment should be terminated.
Findings Of Fact At all times material here, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Taylor County, Florida. A Master Teacher Contract between Petitioner and the Taylor Education Association governs relations between Petitioner and its teachers. Respondent is an educator, with 35 years of teaching experience. She is certified by the Florida Department of Education to teach students enrolled in the Exceptional Student Education (ESE) program. Respondent has at least 20 years of experience in teaching ESE students. During the 2009-2010 school year, Petitioner employed Respondent as an annual contract teacher at Perry Primary School. Pursuant to the contract, Petitioner hired Respondent to work from August 17, 2009, to June 9, 2010. Respondent’s class during the 2009-2010 school year was made up of students with varying exceptionalities. The exceptionalities included handicaps such as specific learning disabilities, attention deficit disorder, autism, or emotional or physical handicaps. The class consisted of students in kindergarten, first, and second grades. At the outset of the 2009-2010 school year, Respondent was assigned eight students, two of which had a full-time personal assistant. Just prior to the Christmas break, Respondent was assigned another ESE student with a full-time personal assistant. The primary responsibility of the personal assistants was to help their designated students function successfully and safely in the classroom. Additionally, the personal assistants were supposed to support the classroom teacher as needed. In addition to the personal assistants, Respondent’s class utilized the services of Behavioral Management Center (BMC). The BMC consultants visited Respondent’s classroom frequently to develop and monitor the implementation of behavior modification plans for certain students. The school psychologist also visited the classroom frequently to assist the teacher and students. Petitioner uses many computer software programs for the testing and monitoring of student progress. The computer programs are necessary in order to comply with Florida Department of Education requirements. The computer programs are used throughout the state and require data entry and transmission at several points in the academic year. Gradequick is a program that enables teachers to electronically enter student grades. Among other tasks, the program calculates grade point averages. The grades and averages are then entered in the Edline program that is accessible by both parents and students. Administrators can access these programs to ascertain the level of progress by a particular class or student. For the 2009-2010 school year, the initial Gradequick and Edline training was conducted the first week of September 2009. Respondent attended the training session. Tienet is a computer program used to assist with the drafting of individual education plans (IEPs) for ESE students. It is a web-based program that also is used to monitor a student’s progress in accomplishing the goals and objectives on the student's IEP. Tienet generates a parent report that goes out with report cards. All students in Respondent’s 2009-2010 class were learning in accordance with an IEP. Aimsweb is a computer program that monitors compliance with state and federal guidelines regarding student achievement and progress in reading and math. Aimsweb requires that all students be tested at the beginning, middle and end of the school year. The teacher uses the initial test or “probe” to determine the child's baseline. Other probes are performed on a weekly basis throughout the school year. Petitioner can use the data to determine if a child is academically at risk and, if so, to implement interventions to address any deficiency. FAIR is a state-mandated assessment test in reading that also is given three times a year. FAIR provides for an exemption for students who are severely limited academically. However, Petitioner always completes the initial FAIR test for all students, regardless of academic ability. After assessing the results of the first probe, Petitioner can then determine whether students will be exempted from further testing. In the 2009-2010 school term, Jack Palaio was an ESE resource teacher and the Perry Primary School technology coordinator. As technology coordinator, Mr. Palaio had to make sure the teachers’ and students’ computers were up and running. He also trained staff and teachers on the use of the computer software programs referenced above. Mr. Palaio’s responsibilities included monitoring data collection and data transmission from the classrooms. On or about September 2, 2009, Mr. Palaio requested that Respondent provide him with a list of her students. Mr. Palaio needed the names to made sure the students were placed in the proper Gradequick files. As of September 14, 2009, Respondent still had not provided Mr. Palaio with the list of names. In addition to the training sessions taught when school began, Mr. Palaio offered to assist Respondent on several occasions starting at the beginning of the year. At times, Respondent sought help from Mr. Palaio in person or by email. By mid-year, it should not have taken Respondent but a few minutes per student to enter weekly data on Gradequick. Aimsweb should have required no more than five minutes per student on a weekly basis. The FAIR data requires very little time because the teacher enters it while testing the students. Tienet data entry takes even less time because it requires formulation of IEPs only once a year and review and maintenance quarterly. Pam Padgett was the assistant principal at Perry Primary School. On September 15, 2009, Ms. Padgett advised Respondent to provide Ms. Padgett with a copy of Respondent’s class schedule. The schedule was necessary to show the times that Respondent intended to teach specific subject areas. On September 15, 2009, Ms. Padgett also informed Respondent that her students would need to take the initial FAIR and Aimsweb probes in order to establish baselines. Ms. Padgett advised Respondent that other staff members would do this testing for Respondent. In September 2009, two of Respondent’s students were exempt from taking the initial FAIR reading probe because of their disabilities. The two students were supposed to be tested using an alternative assessment known as the Brigance. Petitioner’s staff decided to test the two students on the FAIR material, using a paper test, in addition to the Brigance test. The Brigance test, in booklet form, was supposed to be given three times a year. Teachers used a different color to score students’ tests each time it was administered. On September 17, 2009, Mr. Palaio requested Respondent to see him about testing her students using the Brigance. Mr. Palio also offered to help Respondent set up Edline for her class. Alise Thompson is the Intervention Resource Compliance Specialist at Perry Primary School. In the 2009-2010 school year, she was responsible for ensuring that teachers properly drafted IEPs using Tienet and for scheduling IEP meetings. On September 21, 2009, Ms. Thompson instructed Respondent to prepare the IEP (goals and objectives) for a student. She reminded Respondent that the IEP meeting for the student was scheduled for September 25, 2009. On September 22, 2009, Mr. Palaio advised Respondent that her class was set up in Gradequick so that she could start adding weekly grades. Mr. Palaio asked Respondent to see him for information about entering the grades in Gradequick. On September 29, 2009, Mr. Palaio again reminded Respondent that she needed to enter her grades in Gradequick so that she could send home midterm progress reports the next day. On September 30, 2009, Mr. Palaio advised Respondent that her kindergarten student needed to have grades entered in the computer on a weekly basis for reading now and for reading, spelling, and math beginning in January. He also reminded Respondent that her first and second grade students needed grades for reading, math, and spelling. As of September 30, 2009, Mr. Palaio had prepared the midterm reports for Respondent’s first and second grade students. He also offered to do the same for the kindergarten student if Respondent would send him the necessary information. Mr. Palaio reminded Respondent that she had been provided with additional computer training in Edline and needed to post her grades in Gradequick on a weekly basis. The September 30, 2009, email to Respondent told her to put her Brigance booklets back in the students’ cumulative folders in the school office. This was necessary in order to ensure their safekeeping. On October 26, 2009, Perry Primary School was preparing to send report cards home for the first nine weeks. Mr. Palaio offered to help Respondent in this regard if she encountered any difficulty. On October 28, 2009, Mr. Palaio offered to help Respondent with entering grades in Gradequick because she was late in doing so. Mr. Palaio advised Respondent that he had corrected some of her inconsistencies, but that he was more concerned with her failure to enter all required grades for her students. Specifically, Mr. Palaio noted that Respondent had not entered grades for some children for over two weeks. George Clayton was the principal of Perry Primary School for the 2009-2010 school year. Around the end of October or the beginning of November 2009, Mr. Clayton sent Respondent a reminder that she was two weeks behind in posting her grades to Edline and entering grades to Gradequick. Mr. Clayton told Respondent to "take care of this matter." Anne Sesock, as the Response to Invention (RTI) Specialist for the 2009-2010 school term, was responsible for monitoring teachers’ data for FAIR and Aimsweb testing at Perry Primary School. Over time, Ms. Sesock became aware that Respondent was behind on her FAIR and Aimsweb testing and/or data entry. On October 29, 2009, Ms. Sesock reminded all teachers that Thursday was the day they should monitor progress of their students in math using Aimsweb. Ms. Sesock had already entered the students’ names into the computer. Ms. Sesock then gave a brief description of how to perform the task. On October 30, 2009, Ms. Sesock reminded certain teachers, including Respondent, that they needed to enter their reading/literacy scores into Aimsweb. This was necessary for the school to prepare for a data meeting. On October 30, 2009, Mr. Palaio reminded Respondent that she needed to see about her Tienet progress reports that had to go home with student report cards. Mr. Palaio sent Respondent another message on October 30, 2009. In that message, Mr. Palaio stated that one of Respondent’s students still needed early literacy scores entered in Aimsweb. On November 2, 2009, Perry Primary School sent report cards home. Ms. Padgett asked Respondent to a meeting regarding Respondent’s failure to send Tienet parent reports out with report cards. On November 2009, Mr. Palaio responded to Respondent’s request for help in checking her students’ grades and parent reports. Mr. Palaio advised Respondent that he had corrected the grades in Gradequick so that she would now be entering grades for the second nine weeks. He stated that she had some grades missing and needed to be consistent in entering the grades. He also reminded Respondent that she needed to make corrections in the Tienet parent reports relating to student objectives, which should have been sent home with the last report cards. On November 17, 2009, Ms. Sesock directed Respondent to bring certain Aimsweb reading benchmark assessment sheets to a training session that afternoon. Ms. Sesock offered to enter them in the computer. In November 2009, Mr. Clayton became concerned with the lack of structure and student behavior problems in Respondent’s classroom. He subsequently initiated a plan to provide Respondent with help in this regard. On November 23, 2009, Ms. Padgett advised Respondent that a substitute would be available the next day so that Respondent could meet with school staff and the BMC consultant. The purpose of meeting was to develop a schedule and activities for Respondent’s class. On or about November 24, 2009, Respondent, the BMC consultant, and other school staff members met to develop a Tuesday/Thursday schedule for Respondent’s class. After the meeting, Respondent was supposed to develop a similar schedule for Monday, Wednesday, and Friday. There is no persuasive evidence that Respondent ever completed this task. The Tuesday/Thursday schedule provides for whole group time beginning at 8:00 a.m. As the day progresses, the personal assistants were assigned to work one-on-one with a student, in small groups, or large groups, while Respondent worked one-on- one or two-on-one with specific students. To supplement the Tuesday/Thursday schedule, Respondent and the BMC consultant developed a Tuesday/Thursday Lesson Plan of 1:1 or 2:1 Instructions. The lesson plan names specific students and the skills/materials to be used with that student. On December 1, 2009, BMC staff visited Respondent’s classroom to observe implementation of the new schedule. They advised Ms. Padgett that Respondent stayed on the schedule for part of the day, but failed to follow it for the rest of the day. On December 1, 2009, Ms. Padgett provided Respondent with a copy of a walk-through monitoring form to be used when she and other administrative staff visited Respondent's class. Ms. Padgett reminded Respondent to post her class schedule for all support staff during the times that Respondent and the personal assistants were working one-on-one with students and in group time. On December 2, 2009, Ms. Padgett shared BMC’s concerns with Mr. Clayton. On December 3, 2009, Ms. Padgett visited Respondent’s classroom to observe a reading lesson under the new Tuesday/Thursday schedule. Ms. Padgett noted that Respondent was behind schedule but appeared to be implementing the new plan. Ms. Padgett subsequently provided Respondent with written observations, setting forth strengths, missed opportunities, and something to work on. In December 2009, Ms. Padgett became aware that Respondent had not done the required mid-year FAIR testing or had done the testing but failed to enter the data in the computer. On December 3, 2009, Mr. Palaio advised Ms. Padgett that Respondent had not started a single FAIR test. The next day, Ms. Padgett directed Respondent to begin FAIR-testing her students and to get help from Mr. Palaio and/or Ms. Sesock, if needed. On December 4, 2009, Mr. Palaio advised Respondent and another teacher that they needed to complete the regress/recoupment forms for their students before Christmas break. The forms are used three times a year to record test data on the same specific skill. The data is used to determine whether a student requires an extended school year (summer school) as an accommodation. On December 7, 2009, Mr. Clayton responded to Ms. Padgett that he was disappointed in Respondent’s failure to adhere to the new schedule. Mr. Clayton stated that he would be visiting Respondent’s class that day. From December 8, 2009, through December 11, 2009, Respondent was absent from school because she had pneumonia. During that week, Respondent came to school one time for a meeting at Mr. Clayton’s request. The meeting related to a student that would soon be entering Respondent’s class. There is no record of Respondent receiving emails from school while she was home sick. Accordingly, the following emails dated December 8 through 11 may not have been read by Respondent until she returned to school on December 14, 2009. On December 8, 2009, Mr. Palaio sent Respondent an email. He advised her that certain students were missing a spelling score in the FAIR testing. On December 9, 2009, Ms. Thompson reminded Respondent that an IEP meeting was scheduled on December 11, 2009, for "O." Ms. Thompson had started the IEP but reminded Respondent to add the goals. The December 11, 2009, IEP meeting obviously had to be cancelled because Respondent was home sick and had not completed drafting the IEP. On December 10, 2009, Mr. Palaio sent Respondent an email. Once again, he reminded her that she needed to enter FAIR scores for spelling. On December 11, 2009, Mr. Palaio sent Respondent an email. Once again, he reminded Respondent to complete the regress/recoup form with all students that week. On December 16, 2009, Mr. Palaio advised Respondent that the initial regress/recoup testing had been done by another staff member the week before and that he had entered the scores. Mr. Palaio provided Respondent with a spreadsheet showing the results of the first probe that needed to be repeated the first day after Christmas break and then again two weeks later. On December 17, 2009, Mr. Palaio reviewed the policy at Perry Primary School regarding the need to check email three or four times a day. Teachers were supposed to read email before school, after reading, during lunch, and after school. Respondent was advised that teachers are held responsible for knowing the information contained in school emails, including requests for specific data. On December 17, 2009, Ms. Sesock reminded all teachers to complete their Aimsweb math and reading probes. Ms. Sesock wanted all teachers to enter the data that day or the next day so that the data would be available in January for intervention assistance team meetings. In an email dated January 3, 2010, Ms. Sesock wanted to know about missing scores in Respondent’s Aimsweb progress monitoring. Ms. Sesock could not run charts on the students until all scores were entered in the computer. January 4, 2010, was a teacher-planning day. During the day, Mr. Palaio sent Ms. Sesock a list of teachers, including Respondent, who had missing Aimsweb data as of December 18, 2009. Ms. Sesock responded with an email inquiring whether they could give Respondent an explicit instruction booklet on how to input scores so Respondent would learn to do it herself and quit bothering them. On January 4, 2010, Mr. Palaio reminded Respondent and other teachers that they needed to complete the second set of regress/recoup progress monitoring. He advised them to use the spreadsheet started before Christmas and to repeat the process on January 19, 2010. On January 5, 2010, Mr. Palaio requested that Respondent see him about Aimsweb and Brigance. He wanted to assist her with the Brigance books and Aimsweb probes. On January 5, 2010, Respondent injured her shoulder and knee when she fell after tripping over a student at school. She was prescribed pain medication (Vicodin and Celebrex) and required to wear a leg brace. Respondent claims that the medications made her sleepy and made it difficult for her to focus. However, she did not complain to anyone at Perry Primary School that the medications were interfering with her performance. On January 8, 2010, Ms. Thompson advised Respondent and other teachers about completing IEPs. Specifically, she reminded them that they needed to enter the accommodations for each child on an individual basis. On January 11, 2010, Mr. Palaio requested that Respondent see him that day. Mr. Palaio wanted to discuss Respondent’s scores for Brigance, Aimsweb, and Tienet. By January 2010, Mr. Clayton was aware that Respondent and the three personal assistants in her classroom were not working as a team. The personal assistants resented having to work with small or large groups of students while Respondent worked with students on a one-on-one or two-on-one basis. Mr. Clayton had a meeting with Respondent and her personal assistants on January 13, 2010. He gave the personal assistants a copy of their job descriptions. He reminded them that Respondent was the class leader and that they were her support staff. On January 13, 2010, Mr. Clayton told the personal assistants that they had to stay with their assigned students when BMC staff came to model implementation or observe implementation of a behavior plan. He did not want the assistants to think they could take a break every time BMC staff visited the classroom. During the January 13, 2010, meeting, Mr. Clayton discussed the Tuesday/Thursday schedule developed by BMC staff. He requested that Respondent develop a Monday/Wednesday/Friday schedule, using the same format, and give it to him. Mr. Clayton was concerned that there was not a consistent daily routine in Respondent’s classroom. Mr. Clayton also discussed Respondent’s lesson plans during the January 13, 2010, meeting. Mr. Clayton wanted Respondent to give him a copy of her lesson plans for the upcoming week every Friday before she left school. The first Friday that Respondent should have given Mr. Clayton her lesson plans was on Friday, January 15, 2010. As a general rule, teachers kept their lesson plans, two weeks in advance, in spiral notebooks provided by the school at the beginning of the school year. Teachers were supposed to keep the lesson plan books on their desks at all times. Mr. Clayton reviewed the lesson plans on a regular basis. Mr. Clayton made the special request on January 13, 2010, about Respondent’s lesson plans because he never saw her plan book on her desk. When he asked about the plan book, Respondent always said it was in her car or at home. During the January 13, 2010, meeting, Mr. Clayton instructed Respondent to provide each personal assistant with a copy of the IEPs and behavior plans for each student in the class. Mr. Clayton wanted the personal assistants to be familiar with all of the students’ IEPs and behavior plans so that they would know what to do in the absence of Respondent or a colleague. The greater weight of the evidence indicates that Respondent never complied with Mr. Clayton’s directive in this regard. Finally, Mr. Clayton told Respondent on January 13, 2010, that her class would be moved that weekend from a portable classroom to a classroom in the main building. The purpose of the move was to place the class closer to the school clinic to accommodate a student with medical issues. Mr. Clayton created written minutes of the January 13, 2010, meeting to share with Respondent and the personal assistants. Following the meeting on January 13, 2010, the assistants became more cooperative. On January 13, 2010, Ms. Sesock told Respondent how important it was for her to have up-to-date progress monitoring data for Aimsweb reading and math. At that time, Respondent had not entered the required weekly progress monitoring data, seven scores in math and five scores in reading. The second benchmark assessment for Aimsweb was due to be entered between January 11, 2010, and January 15, 2010. Ms. Sesock wanted to make sure that Respondent had all the materials she needed to perform the assessment. On January 13, 2010, Ms. Thompson reminded Respondent that "O's" IEP meeting was scheduled for Friday, January 15, 2010. Ms. Thompson requested that Respondent update his academic and behavior goals before the meeting. The next day, Ms. Thompson directed Respondent to update "O's" curriculum and behavior goals. On January 15, 2010, the IEP meeting had to be rescheduled because Respondent did not have “O’s” IEP properly drafted. Ms. Thompson sent an email to Respondent, stating that Respondent needed to separate goals and objectives on the IEP by subject area. For example, Respondent needed one goal and two objectives for reading, math, and behavior. After receiving a copy of Ms. Thompson’s January 15, 2010, email to Respondent, Mr. Clayton directed Respondent to complete “O’s” IEP goals by January 19, 2010. Mr. Clayton told Respondent to put the IEP in his mailbox before she left school on the 19th. On January 15, 2010, Respondent did not provide Mr. Clayton with the lesson plans for the upcoming week. Instead, she left school early for a doctor’s appointment and took the rest of the day off. On January 19, 2010, Mr. Clayton advised Respondent that he had reviewed her Aimsweb data and that it was not updated. He told her to update the reading and math data before she left school on January 21, 2010. During the 2009-2010 school year, Respondent had completed two IEPs before attempting the IEP for “O.” However, Respondent failed to complete “O’s” IEP and place it in Mr. Clayton's mailbox on January 19, 2010, as requested. On January 19, 2010, Mr. Palaio sent Respondent an internet link for Tienet. Apparently, Respondent had lost the website address. On January 21, 2010, Mr. Clayton issued Respondent a letter of reprimand for “insubordination” for failing to complete “O’s” IEP on time. Respondent received the January 21, 2010, letter of reprimand, concerning the IEP, in her mailbox at school. Respondent’s failure to timely complete the IEP was gross insubordination. Respondent had been given more than enough time and assistance to properly draft the IEP. There is no persuasive evidence that Respondent’s pain medication was responsible for her inability to complete the IEP. On January 21, 2010, Ms. Thompson advised Respondent that corrections still needed to be made to “O’s” IEP. Respondent was told that each area of the IEP needed a present- level statement followed by at least one goal and two objectives. Later that day, Mr. Palaio gave Respondent additional suggestions to make the IEP meet Petitioner’s ESE standards. On January 21, 2010, Mr. Palaio sent Respondent an email. The message reminded Respondent that most of her Aimsweb scores had not been entered. On the morning of January 22, 2010, Mr. Clayton shared some of his concerns with Respondent in an email. First, he discussed Respondent’s need to conduct Aimsweb progress monitoring probes in reading and math. Second, Mr. Clayton was worried about Respondent’s failure to enter grades in Gradequick, advising her to see Mr. Palaio by the end of the day to resolve this matter. Third, Mr. Clayton reminded Respondent that she needed to be using the school-wide behavior modification program. Fourth, Mr. Clayton noted some errors in “O’s” IEP. Fifth, Mr. Clayton told Respondent not to forget to do the ESE regress/recoup form. Finally, Mr. Clayton reminded Respondent that she was supposed to provide him with a copy of her lesson plans before leaving school that afternoon. Mr. Clayton wanted to make sure that Respondent received his January 22, 2010, email. He asked his assistant to call Respondent that afternoon. Realizing that Respondent was not in her classroom, Mr. Clayton requested the assistant to call Respondent’s cell phone and her husband’s cell phone. Because Mr. Clayton could not reach Respondent, he sent her another email at 3:55 p.m., telling her to contact Mr. Palaio if she and he were still on campus. Respondent left school on Friday, January 22, 2010, without giving Mr. Clayton her lesson plans. At 5:51 p.m. on January 22, 2010, Mr. Palaio sent Respondent an email. He reminded her to do her quarterly Tienet progress reports that were due to go home with report cards on January 27, 2010. On Monday morning, January 25, 2010, Mr. Clayton sent Respondent an email. The message stated that administration wanted to meet with her at 2:30 in Mr. Clayton’s office. Respondent was advised that she could bring union representation to the meeting. During the meeting on January 25, 2010, Mr. Clayton discussed Respondent’s failure to provide him with her lesson plans as directed. Mr. Clayton also told Respondent that her failure to complete a task by a given date constituted insubordination and served as grounds for termination. During the January 25, 2010, meeting, Mr. Clayton told Respondent that she had a chance to resign. Mr. Clayton stated that if she did not resign, he would contact the Superintendant and recommend her termination. Respondent could not make a decision to resign without talking to someone. Mr. Clayton told Respondent to let him know her decision by Wednesday, January 27, 2010. Respondent did not do so. At some point in time, Mr. Clayton placed a letter of reprimand, dated January 25, 2010, in Respondent's mailbox for failing to provide him a copy of her lesson plans on January 15, 2010, and on January 22, 2010. Mr. Clayton noted in the letter that he still had not received Respondent's lesson plans. Following the meeting, on January 25, 2010, Respondent got materials ready for her students for the remainder of the week. Respondent did not return to work until Monday, February 1, 2010. On January 26, 2010, Ms. Thompson advised Respondent by email that “O’s” goals and objectives were looking better. However, Ms. Thompson noted certain corrections needed to be made. Ms. Thompson placed a draft copy of the IEP, with notations, in Respondent’s mailbox. When Respondent returned to school on February 1, 2010, she gave Mr. Clayton a very detailed copy of her lesson plans for February 1, 2010, through February 12, 2010. The lesson plans were in a narrative form and not in a lesson plan book form that contains plans for a week at a glance. Even though the plans were not drafted according to Perry Primary School policy and were not the plans expected, Mr. Clayton provided Respondent with a lengthy critique of the lesson plans. On February 1, 2010, Mr. Clayton advised Respondent that she needed to complete the regress/recoup spreadsheet. He also told her that she still needed to fix “O’s” IEP by February 3, 2010, and before the IEP meeting on February 10, 2010. Mr. Clayton directed Respondent to complete the January Brigance testing before she left work on February 5, 2010. On February 1, 2010, Ms. Padgett sent Respondent an email regarding the reading programs in Respondent’s classroom. Ms. Padgett told Respondent that Ms. Padgett and the BMC staff had made certain decisions about the reading program while Respondent was absent from school. On February 2, 2010, Ms. Thompson advised Respondent that "O's" IEP was better. However, Ms. Thompson noted that Respondent needed to work on the reading goal and two objectives. On February 3, 2010, Ms. Thompson stated that she had met with Mr. Palaio and that he had offered some suggestions for “O’s” IEP. Ms. Thompson's message included a copy of a draft IEP prepared by Mr. Palaio. In a letter dated February 3, 2010, Mr. Clayton recommended that the Superintendant terminate Respondent’s employment. The letter references Respondent’s failure to provide him with lesson plans and the associated reprimand. The letter does not refer to Respondent’s reprimand for not completing the IEP goals. Mr. Clayton’s February 3, 2010, letter also included the following deficiencies: (a) Respondent never provided the personal assistants with the student behavior plans as instructed on January 13, 2010; (b) Respondent did not have her Brigance testing up to date; and (c) Respondent’s Aimsweb data was not up to date. In a letter dated February 5, 2010, Paul Dyal, Superintendant of Taylor County School District, advised Respondent that her employment was suspended with pay as of February 8, 2010. Mr. Dyal stated that the action was based on Respondent’s insubordination as outlined in Mr. Clayton’s February 3, 2010, letter. Mr. Dyal’s letter was hand-delivered to Respondent on February 5, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That The Taylor County School Board enter a final order terminating Respondent’s employment. DONE AND ENTERED this 22nd day of February, 2011, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2011. COPIES FURNISHED: Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 Paul Dyal, Superintendent Taylor County School District Alton J. Wentworth Administrative Office Complex 318 North Clark Street Perry, Florida 32347 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
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 Whether Petitioner has just cause to terminate Respondent’s employment as a teacher, for alleged violations of various School Board rules and policies, as outlined in the Superintendent’s letter to Respondent, dated June 15, 2009.
Findings Of Fact Petitioner is the School Board of Sarasota County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools within Sarasota County, in accordance with Part II, Chapter 1001, Florida Statutes (2009). The School is a middle school operated by Petitioner. Petitioner employed Respondent, Brian Berry, as a teacher at the School for several years. Respondent taught students with ESE designation. Respondent is an “instructional employee” under the Instructional Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association (“Union”), and Petitioner (July 1, 2006 – June 30, 2009, for the 2008-2009 year)(the “Collective Bargaining Agreement”). Article XXV of the Collective Bargaining Agreement governs disciplinary actions against teachers, including Respondent. The Collective Bargaining Agreement requires there to be just cause for any discipline. Normally, the following progressive discipline steps are administered: (1) verbal reprimand; (2) written reprimand; (3) suspension and, (4) termination. Following progressive discipline is not required “in cases that constitute a real immediate danger to the district or other flagrant violations.” During the 2008-2009 school year, Respondent’s classroom was one of four classrooms arranged in a quadrant fashion around a center internal office that connects the four classrooms to each other. Respondent’s room was in the southwest quadrant. Holmes had the room in the northwest quadrant. Brooks had the room in the southeast quadrant. Like Respondent, Holmes and Brooks taught ESE students. Brooks and Respondent shared a paraprofessional, Collins. Bazenas became the School’s principal in April 2006, and has been its principal since that time. Before resorting to the progressive discipline system, School administration routinely counsel employees on an informal basis when there is a concern. Generally, the counseling occurs as a conversation between the administrator and instructor. This informal counseling is non-punitive. Administrators also use Memorandums of Instruction to clarify expectations. A Memorandum of Instruction is also non-punitive in nature; however, failing to abide by the expectation contained in a Memorandum of Instruction could warrant discipline. Respondent’s prior disciplinary history includes: Verbal Reprimand, dated December 17, 2007, for failing to monitor students. Verbal Reprimand, dated January 19, 2009, for failing to submit student attendance on 39 occasions during the 2008- 2009 school year through January 6, 2009. Written Reprimand, dated January 20, 2009, for failing to follow three separate Memorandums of Instruction concerning posting student attendance and for failing to report student attendance on January 7, 2009. Individual Education Plans During the 2008-2009 school year, Respondent was the case manager responsible for drafting Individual Education Plans (“IEPs”) for several of his students. Under federal law, IEPs must be updated at least once each year. Failing to update an IEP by the time the prior IEP becomes out of date means such IEP is out of compliance. This jeopardizes ESE funding, which comes from state and federal sources. During the 2008-2009 school year, there was an ESE liaison (Cindy Lowery) at the School who routinely and timely reminded case managers, including Respondent, of their IEP responsibilities, important deadlines, and steps necessary to be taken by the case manager. At the beginning of the school year, Lowery explained the procedures to case managers, including Respondent. Respondent received numerous reminders prior to the expiration of each IEP for which he was responsible. The expectations relating to IEP completion were clear and known to case managers, including Respondent, at all relevant times. At all times during the 2008-2009 school year prior to his being placed on administrative leave on March 17, 2009, Respondent had the ability to complete in a timely manner each IEP for which he was responsible. He also had access to all materials and assistance necessary to timely complete each of the IEPs. During school year 2008-2009, Respondent was the case manager and responsible for the IEPs of students A.M. (due 11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed 2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due 2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009); B.B. (due 3/11/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009). Reporting Attendance Teachers are required to take classroom attendance each period and timely post that attendance into the School’s computer program that tracks attendance. This expectation is contained in the School’s staff handbook, which is developed and reviewed annually by a shared-decision making team, composed of administrators, teachers, and community members. Reporting attendance each period is a safety and security matter. Reporting attendance also assists with accountability for funding purposes. During the 2008-2009 school year prior to being placed on administrative leave on March 17, 2009, Respondent failed to report attendance in at least one period on: August 20, 21, 25, 26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30; October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12, 18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19, 24; and March 3, 4, 10, 13, and 16. In all but six of those dates, Respondent failed to report attendance for multiple periods. On October 20, 2008, November 24, 2008, and January 7, 2009, administrators at the School provided Respondent with Memorandums of Instruction reminding Respondent of the need to submit attendance electronically each period. FCAT Proctoring On March 10 and 11, 2009, the FCAT was administered at the School. Respondent was assigned to proctor students who were permitted testing accommodations. Some permitted accommodations included extended testing time and having proctors read questions. Testing of these students occurred in the School’s media center. Another ESE teacher, Aisha Holmes, was also assigned to proctor similar students. Proctors were instructed that they needed to sign-in and sign-out upon entering and leaving the media center; that they could not engage in personal reading; and that they needed to actively supervise the students at all times. A preponderance of evidence supports the finding that Respondent engaged in the following activities contrary to his duties as proctor: Over the two-day proctoring session, Respondent failed to sign-in and sign-out every time that he took a break. Respondent engaged in personal reading and other non-proctoring activities when he was required to be actively proctoring the FCAT. Respondent stood over student S.L.’s shoulder for a time period exceeding two minutes. While Respondent contends that he was trying to determine if S.L. had finished, S.L. had not finished. Respondent’s actions were intimidating to S.L. On the second testing day, Respondent fell asleep on a couch in the media center for a period of time when he should have been actively proctoring. Respondent snored, causing a disturbance to the students engaged in testing activities. While the length of time Respondent slept was in dispute, the evidence demonstrates that it was considerably longer than a brief moment as advanced by Respondent. On the second day of testing, a student spilled juice on that student’s reference sheet. Respondent placed the reference sheet in the microwave but did not monitor the drying process. The microwave scorched the reference sheet, resulting in a burnt smell invading the testing area and causing another disturbance to the students engaged in testing activities. Use of Video with No Learning Objective in Place In February 2009, Respondent showed the movie “Happy Feet” to his class. He concedes that he had no learning objective in mind in showing this video. Although Respondent explained that in his opinion, no learning could be accomplished that day due to the death of a co-teacher’s fiancé, Respondent conceded that he requested no assistance in addressing this situation despite such assistance being available to him. Lesson Plans Teachers are required to prepare lesson plans at least one week in advance. Teachers are also required to have the lesson plan on their desk and available for review. The lesson plan expectations are contained in the School’s staff handbook. The lesson plans are the guiding document for instruction, which requires teachers to give forethought as to the content of their lessons. It is used by teachers to focus their lessons, by administrators to ensure content aligns with teaching objectives, and by substitutes in the absence of the teacher. It is undisputed that the School’s administration repeatedly counseled Respondent to create and have lesson plans available. Respondent failed to have lesson plans completed and available for the week of October 6, November 17, and December 15, 2008, and January 5, January 20 and February 2, 2009. February 3, 2009 Weingarten Hearing On February 3, 2009, Bazenas and Respondent met in a formal, noticed meeting to discuss Respondent’s failure to complete IEPs for Students J.G. and U.S. That meeting also addressed Respondent’s continued failure to comply with school policy on maintaining lesson plans. It is undisputed that Respondent failed to timely complete the IEPs for students J.G. and U.S., and that he failed to comply with the lesson plan requirement. March 16, 2009 Weingarten Hearing On the afternoon of Monday, March 16, 2009, Bazenas and Respondent and others met in a formal, noticed meeting to discuss: (1) Respondent’s failure to complete IEPs for students N.C. and B.B. prior to their IEPs becoming out of compliance; (2) the FCAT proctoring matters; (3) use of the video “Happy Feet” with no learning objective; (4) continued failure to comply with the lesson plan expectation; (5) tardiness on March 9, and March 10, 2009; and (6) use of the girls’ restroom.1 It is undisputed that Respondent failed to complete the IEPs for students N.C. and B.B. in a timely manner, and that he used the video “Happy Feet” with no learning objective in place. During the meeting, Bazenas presented Respondent with the summary of Holmes’ observations of Respondent’s conduct while proctoring the FCAT. Respondent conceded that he was inattentive at times during FCAT proctoring and did fall asleep for some period of time during the FCAT, although he disputes it was for 45 minutes. March 17, 2009, Confrontation On the morning of Tuesday, March 17, 2009, Respondent entered Holmes’ classroom to “discuss” Holmes’ summary of her observations of Respondent during the FCAT. A student, whom Holmes was tutoring, was present in Holmes’ room at the time. Holmes was uncomfortable with Respondent’s insistence on discussing the FCAT matter at that time in front of the student. Holmes advised Respondent that she would talk to him later. Respondent, however, persisted in continuing his challenge to Holmes’ FCAT proctoring observations in front of the student. At that point, Bazenas entered Holmes’s room. Bazenas observed that the situation was “tense” and that Holmes was backed into a corner of the room. Bazenas also observed that the student that was present looked very uncomfortable. At that point, Bazenas, in a reasonable voice, requested that Respondent return to his own classroom to supervise his students. Respondent immediately became upset and began yelling at Bazenas, telling Bazenas not to interrupt him. Respondent approached him and pointed his finger in Bazenas’ face. At that time, Collins was in Brooks’ room. Collins heard shouting coming from the direction of Holmes’ room. Collins proceeded into the center office of the quad. She observed Respondent shouting at Bazenas that he was a “liar” and that Respondent would see Bazenas “in court.” Collins did not hear Bazenas raise his voice. Collins was fearful of Respondent; she had never seen Respondent act in that way. She also testified that Bazenas looked fearful of Respondent. Respondent then proceeded into his classroom and Bazenas followed Respondent into the classroom. He put himself between Respondent and his students, permitting Collins to remove the students from Respondent’s classroom, taking them into Brooks’ classroom. Respondent continued with his emotional outburst during this time. When Bazenas requested that Respondent leave campus immediately, Respondent threatened Bazenas. Bazenas subjectively believed that Respondent’s agitated behavior and his statement to be a threat of violence. Respondent also directed inappropriate comments to his students about Bazenas during his outburst. As Collins brought Respondent’s students into Brooks’ classroom, Collins was shaking and looked very fearful. After all of Respondent’s students were in Brooks’ classroom, Brooks locked the doors. Locking the doors is an unusual occurrence; however, Respondent did leave campus voluntarily. Respondent was immediately placed on administrative leave. Shortly thereafter, a police officer went to Respondent’s house to advise Respondent to stay away from campus. Respondent complied with the request. Respondent’s outburst on March 17, 2009, constituted a real and immediate threat to the School administration, teachers and students and was a flagrant violation of school policies and the State Principles of Professional Conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating the employment of Respondent from the date Respondent was placed on unpaid leave of absence. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 27th day of January, 2010.
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
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 that Respondent has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, 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 19th day of June, 2015.
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges, as amended. If so, what action should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Among these schools are Miami Central Senior High School (Central) and American Senior High School (American). Alberto Rodriguez is now, and has been for the past six years, the principal at American. As American's principal, Mr. Rodriguez has supervisory authority over the School Board employees assigned to work at the school. These employees are expected to conduct themselves in accordance with School Board Rules, including School Board Rules 6Gx13-4A-1.21, 6Gx13-5D-1.07, and 6Gx13-6A-1.331 At all times material to the instant case, School Board Rule 6Gx13-4A-1.21 provided, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES Employee Conduct All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . At all times material to the instant case, School Board Rule 6Gx13-5D-1.07 provided as follows: CORPORAL PUNISHMENT- PROHIBITED The administration of corporal punishment in Miami-Dade County Public Schools is strictly prohibited. Miami-Dade County Public Schools has implemented comprehensive programs for the alternative control of discipline. These programs include, but are not limited to, counseling, timeout rooms, in-school suspension centers, student, mediation and conflict resolution, parental involvement, alternative education programs, and other forms of positive reinforcement. In addition, suspensions and/or expulsions are available as administrative disciplinary actions depending of the severity of the misconduct. Procedures are in place for students to make up any work missed while on suspension, or to participate in an alternative program if recommended for expulsion.[2] Respondent has been employed as a teacher by the School Board since 1994. He has a professional service contract of employment with School Board. From 1994 through 2000, Respondent was assigned to Central, where he taught emotionally disturbed and severely emotionally disturbed students. He had an unblemished disciplinary and performance record at Central. Respondent was reassigned from Central to American, where he remained until August of 2001, when he was "placed in an alternative work assignment at Region I" pending the disposition of charges against him. At American, Respondent taught emotionally handicapped (EH) students. Among the students in his classes were O. A., V. S., C. H., T. S., R. D., and A. D. At all times material to the instant case, Nanci Clayton also taught EH students at American.3 She had some of the same students in her classes that Respondent had in his. At the beginning of the 2000-2001 school year, Ms. Clayton and Respondent had paraprofessionals in their classrooms. The paraprofessionals, however, were removed from their classrooms after the first grading period. Ms. Clayton's and Respondent's classrooms were located in one "very large [room] divided in half [by a makeshift partial partition4] to make two classrooms."5 This partial partition consisted of bookcases, a blackboard, filing cabinets, and, at times, a table. To enter and exit Respondent's classroom, it was necessary to pass through Ms. Clayton's classroom, where the door to the hallway was located. There was no direct access to the hallway from Respondent's classroom. Ms. Clayton's desk was located immediately to the left of the door as one walked into her classroom from the hallway. Students leaving Respondent's classroom had to pass by Ms. Clayton's desk to get to the hallway. The "divided room" that Ms. Clayton and Respondent shared had a "phone line," but no School Board-supplied telephone. Ms. Clayton and Respondent had to supply their own telephone. "Sometimes [the telephone] would work, sometimes it wouldn't work." There was no "emergency" or "call" button in the room. There were occasions when Ms. Clayton and Respondent "conduct[ed] [their] lessons simultaneously in this divided room."6 Things said in one of the classrooms could, at times, be heard in the other classroom. It is not uncommon for EH students to have mood swings, to become easily frustrated and angered, to be verbally and physically aggressive, to engage in off-task behavior, and to defy authority. Controlling the behavior of these students in the classroom presents a special challenge. As EH teachers at American, Ms. Clayton and Respondent were faced with this challenge. It was their responsibility to deal with the behavioral problems exhibited by their students during the course of the school day while the students were under their supervision. American had a Behavior Management Teacher, David Kucharsky, to assist the school's EH teachers in dealing with serious or chronic behavioral problems. There were far fewer instances of disruptive student behavior in Ms. Clayton's classroom than in Respondent's. While in Respondent's class, some students would do such things as throw books and turn the lights off. Ms. Clayton, however, would not "have the same kind of problems" with these students when she was teaching them. Ms. Clayton "made recommendations" to Respondent to help him better control the behavior of students in his classes. As a teacher at American, Respondent was a member of a collective bargaining unit represented by the United Teachers of Dade (UTD) and covered by a collective bargaining agreement between the School Board and UTD, effective July 1, 1999, through June 20, 2002 (UTD Contract). Article V of the UTD Contract addressed the subject of "employer rights." Section 1 of Article V provided, in part, that the School Board had the exclusive right to suspend, dismiss or terminate employees "for just cause." Article XXI of the UTD Contract addressed the subject of "employee rights and due process." Section 2 of Article XXI provided, in part, that "[d]ismissals and suspensions shall be effected in accordance with applicable Florida statutes, including the Administrative Procedures Act (APA) " Article VIII of the UTD Contract addressed the subject of a "safe learning environment." "Student discipline" was discussed in Section 1 of Article VIII, which provided, in part, as follows: Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. Rules governing discipline are set forth in the Code of Student Conduct, School Board Rules, and Procedures for Promoting and Maintaining a Safe Learning Environment and, by reference, are made a part of this Contract. * * * D. The parties recognize the potential for difficult circumstances and problems related to the use of corporal punishment. Accordingly, the parties agree that such punishment shall be prohibited as a disciplinary option, and further agree to act affirmatively in continuing to identify and implement more effective alternatives for dealing with student behavior. The involvement of school-site personnel in developing such alternatives is critical to their potential for success. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive prior to or upon the student's return to the classroom, a copy of the Student Case Management Form (SCAM) describing corrective action(s) taken. . . . "Physical restraint" and its use, in certain circumstances, on students receiving exceptional student education services was discussed in Section 3 of Article VIII, which provided as follows: Section 3. Physical Restraint There are instances where exceptional students exhibit behaviors that are disruptive to the learning environment and pose a threat to the safety of persons or property. Some exceptional students because of the nature of their disability, may, on occasion, experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the Individualized Education Program (IEP) development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multi-Disciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk to persons or property, the use of physical restraint technique is authorized for such circumstances. Subject to available funding, the Board shall provide for the training of instructional and support staff in physical restraint techniques, as well as strategies for prevention of aggressive behavior. Training manuals developed for this purpose are, by reference, incorporated and made a part of this Agreement. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided and these guidelines, shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce Board Rules 6Gx13-5D-1.07 and 1.08.[7] The appropriate use of these procedures shall not constitute a violation of the corporal punishment policy (Board Rule 6Gx13-5D-1.07). Physical restraint refers to the use of physical intervention techniques designed to restrict the movement of a student in an effort to de-escalate aggressive behavior. In order to promote a safe learning environment, the district has authorized the implementation of specific physical restraint procedures to be used in Exceptional Student Education programs when a student's IEP documents the potential need for their use. These procedures include, but are not limited to, holding and escape techniques which, when implemented, prevent injury to students and staff or prevent serious damage to property. Specific physical restraint procedures may also be approved for use with other specific student populations, upon mutual agreement of the parties and would be reviewed on an annual basis. The use of physical restraint must be documented as part of the SCM system. Instructional or support staff who utilize physical restraint techniques shall complete the SCM Student Services Form to record student case information regarding each incident. Directions shall be provided to instructional and support staff to assist them in completing the appropriate form. At all times material to the instant case, the Individualized Education Program for each of the students in Respondent's classes "document[ed] the potential need for the[] use" of the School Board-approved "physical restraint techniques" referenced in Section 3 of Article VIII of the UTD Contract. Respondent received training in 1994 in the use of these techniques. At another in-service training session that he attended when he was teaching at Central, the head of the school's program for emotionally disturbed and severely emotionally disturbed students spoke about the "preventative strategies" of "planned ignoring" and "proximity control" and gave to the attendees, including Respondent, a handout, which stated the following about these "preventative strategies": Planned Ignoring Inappropriate behavior is ignored and not reinforced by staff by not reacting or responding to specific disruptive activity of a student in anticipation that the inappropriate behavior will extinguish or subside without further [sic]. The second part of this intervention is to reinforce positively acceptable behavior in anticipation that this behavior will occur more frequently. Proximity Control This intervention takes advantage of the positive effect of using a nonverbal communication such as gestures, looks, or body postures to decrease inappropriate classroom behavior. As an additional measure, physical contact in the form of a hand on the student's shoulder or a squeeze of an arm, can be very supportive to the student, yet convey the message that certain behaviors will not be tolerated. Respondent employed these "preventative strategies" at Central and was never disciplined for doing so. At American, Respondent was involved in several incidents in which he used physical force against students. On February 28, 2001, Respondent was at his desk teaching a class when one of the students in the class, V. S., got out of his seat and started "knocking on the T.V." that was in the classroom. V. S. was a "very large student" who, on a previous occasion, had "threatened to take [Respondent's] head and push it through a plate-glass window" and, on other occasions, had told Respondent: We are going to get you white man. We are going to make you quit. We are going to get you fired.[8] Respondent told V. S. to take his seat. V. S. refused. Instead, he sat down on Respondent's desk and "leaned over toward [Respondent]," positioning his face "about a foot" from Respondent's. V. S. was "glaring down at [Respondent]" and had a "tight-lipped grin" on his face. This made Respondent feel "a little edgy." After directing V. S. to "get off [the] desk" and receiving "no response," Respondent (rather than getting up from his seat and walking away from V. S.) "reached out and gave [V. S.'s] arm a shake" in order "to get [V. S.'s] attention."9 Respondent obtained the result he desired. V. S. got off the desk; but he did not do so quietly. V. S. yelled profanities at Respondent and threatened to "kill" Respondent if Respondent ever touched him again. Prior to Respondent shaking his arm, V. S. had not made, during the incident, any verbal threats against Respondent. The incident was reported to the administration and the matter was investigated. Respondent, V. S., and another student, C. H., who witnessed the incident, gave written statements that Mr. Rodriguez reviewed. On March 15, 2001, after reviewing the statements, Mr. Rodriguez held a Conference-for-the-Record with Respondent. Mr. Rodriguez subsequently prepared (on March 21, 2001) and furnished to Respondent (on that same date) a memorandum, in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Thursday, March 15, 2001, at 2:00 p.m. in this administrator's office. Present at the conference were Mark Soffian, assistant principal; Karen Robinson, assistant principal; Jimmy Jones, UTD Representative; yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F-09343. -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Review of the record. -Future employment with Miami-Dade County Public Schools. This administrator began the conference by reviewing Case #F-09343. This administrator read your statement and the statements of the students alleging battery on a student. This administrator asked you if you had any comments in reference to the incident. You stated that you had to write up everyone in class, because students were turning off the lights and throwing books in the dark despite repeated warnings. You characterized this student behavior as "organized disruption." You further stated that another student was tormenting a classmate who shrieked out in pain, ran out of class and then was dragged back in by the same student. You described that another student was banging on the television and you had to write him up. You said you did not push [V. S.] (victim-I.D. #427561) but rather he leaped off the desk, shouted a tirade of curses at you and then left class. You indicated that you did not push because you were unable to move an 18 year old who is 260 pounds.[10] This administrator asked if you ever left your class unsupervised. You stated, "Yes, from time to time." This administrator cautioned you that one of your professional responsibilities is never to leave your students unsupervised. Additionally, the fact that you described the numerous classroom discipline problems, it is of the utmost importance that your students remain supervised at all times. This administrator reviewed with you the Code of Ethics and Principles of . . . Professional Conduct of the Education Profession in Florida. This administrator specified certain areas of the Code of Ethics in which you were in violation. This administrator asked you to respond and you nodded your head in the affirmative. This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). You were asked if you understood and you responded "Yes." This administrator reviewed with you Miami- Dade County School Board Rule 6Gx13-4A-1.21 (Employee Conduct). This administrator reminded you that you are expected to conduct yourself, both in your employment and in the community, in a manner that will reflect credit upon yourself and the school system. You were asked to respond and you stated "I understand." This administrator conducted a review of the record. There was another incident involving the use of improper force and disciplinary means against a student that was cited on November 11, 2000. The case (F-03631) was never pursued; however, this administrator cautioned you that these past episodes demonstrate use of poor judgment on your part. This administrator informed you that repeated offenses would result in further disciplinary actions that will negatively impact your future employment with Miami- Dade County Public Schools. This administrator then asked if you had any further comments or statements for the record. You requested that a handout on "preventative strategies" and Florida Statute Chapter 232.27[11] be included as part of the written summary. You further stated that you didn't claim to be perfect and there was room for improvement. You stated that teaching six periods made it difficult to do the job effectively. This administrator asked if you wanted to give up the sixth period supplement since if was your choice to take on that added teaching responsibility for remuneration. You stated that you did not want to give up the money. This administrator advised that you cannot use the sixth period day as an excuse, and if it is a hardship where you are unable to perform your prescribed duties th[e]n you need to let this administrator know. Additionally, this administrator informed you that writing referrals to exclude seven or eight students in your Exceptional Education class was unacceptable. This administrator recommended for you to acquire additional training in dealing with Emotional Handicapped students. Seeking alternative means of discipline in lieu of suspension and exclusion from class will be necessary. This administrator provided you with Miami-Dade County School Board Manual of Procedures for Special Programs to assist you in managing your classroom and providing appropriate strategies in handling Exceptional Education students.[12] This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline. -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited). -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct). -Refrain from leaving students in the classroom unsupervised. In closing, this administrator informed you that failure to comply with these directives and recurrences of this type will result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide[] you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. Attached to the memorandum were copies of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida (which are found in Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code), School Board Rule 6Gx13-5D- 1.07, School Board Rule 6Gx13-4A-1.21, the handout on "preventative strategies" that Respondent had received at Central, and the cover page, as well as pages 119 and 121, of the Miami-Dade County School Board Manual of Procedures for Special Programs referenced in the memorandum. Page 121 of the Miami-Dade County School Board Manual of Procedures for Special Programs manual read as follows: Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restraint is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property. The purpose of physical restraint is to prevent injury to persons or destruction of property. It is not to be used to "teach the child a lesson" or as punishment. For students who exhibit such behaviors, the use of physical restraint procedures shall be discussed as part of the IEP development and review process. A recommendation for the use of Board-approved physical restraint procedures must be made by the Multidisciplinary Team (M-Team) and shall be documented on the student's IEP form before the use of such procedures may be authorized. When parents or surrogates are not present at the IEP meeting, written notification to them regarding the use of physical restraint will be provided. Strategies for the prevention of aggressive behavior shall be utilized on an ongoing basis. However, when an explosive event occurs without warning and is of such degree that there is imminent risk of persons or property, the use of physical restraint techniques is authorized for such circumstances. The School Board shall provide for the training of the appropriate instructional and support staff in physical restraint techniques, as well as strategies for the prevention of aggressive behavior. Training manuals developed for this purpose are available at school sites. Physical restraint techniques provided in training programs approved by the Board are authorized and, when utilized in accordance with the training provided, these guidelines shall not constitute grounds for disciplinary action. If a teacher is not trained in the use of approved physical restraint procedures and is faced with an emergency, the teacher is authorized to employ the moderate use of physical force or physical contact as may be necessary to maintain discipline or to enforce School Board Rules 6Gx13-5D-1.07 and 1.08. The appropriate use of these procedures[13] On May 2, 2001, Respondent again used non-approved "physical means to enforce student discipline," notwithstanding the reasonable directive that he had been given by Mr. Rodriguez at the March 15, 2001, Conference-for-the-Record that he "refrain" from engaging in such conduct. That day, students in Respondent's third period class, including T. S., R. D., and O. A., were scheduled to take the Scholastic Reading Inventory Test (SRI). The SRI is a standardized test designed to measure students' reading skills. The results of the test are "used to guide classroom instruction, so it is considered [to be a] low- stakes" test. Respondent had received in-service training, prior to May 2, 2001, on how to administer the SRI. It was emphasized during the training that, for the SRI "to be an effective test, [it had to] be protected from [pre-test administration] dissemination" and that it was important for teachers administering the test to make sure their students returned all test materials "at the end of the test period" and did not leave the test site with these materials. At the training, Respondent was given a document which contained standards for "test administration and test security." These standards provided, in part, as follows: STANDARD: PROFESSIONAL OBLIGATIONS IN THE IMPLEMENTATION OF THE TESTING PROGRAM AT THE SCHOOL LEVEL . . . . The test administrator is responsible for directing and conducting the testing session(s) as specified in the administration manual or program guide, strictly adhering to test directions, monitoring students during testing, and maintaining the security of test materials assigned to him/her. . . . STANDARD: TEST SECURITY PROCEDURES FOR THE DISTRIBUTION AND RETURN OF TEST MATERIALS Each principal or designee is responsible for the receipt, inventory, secure storage, distribution, collection, and return of all test booklets and test-related material assigned to that school, according to the directions and instructions specified in the administration manuals or program guides. The principal or designee must notify the Division of Student Assessment and Educational Testing immediately if any discrepancies are noted in the counts, or if any materials are missing. The principal or designee must advise all teachers of the rules relating to test security and of the importance of complete adherence to them. Adherence to these test security procedures for the distribution and return of test materials, before, during, and after testing will ensure that: students do not have access to any of the material prior to the actual exam time or following it; professional staff have access to the test booklets, test folders, questions, and/or reading passages only at the time necessary for administration purposes; test booklets and test materials are returned to the test chairperson at the end of each testing session; and nothing has occurred in the school to allow unauthorized access to any of the test materials at any time. . . . STANDARD: MAINTAINING STANDARDIZATION AND TEST SECURITY DURING TEST ADMINISTRATION . . . . Students must have access to test booklets, test folders (i.e., test questions) ONLY during the actual administration of the test. Test materials must be secured at all times. Materials must be handed directly to and collected from each student one at a time. If a student needs to leave the test room, his/her materials must be collected and held upon the student's return[;] the test administrator must ensure that the student receives only his/her own test materials. Test administrators and proctors must actively monitor students during the entire testing period by walking around the room, to ensure compliance with test directions and to prevent cheating. Any irregularities or problems with the test administration must be promptly reported to the test chairperson, the school-site administrator, and district staff. . . . Test administrators, proctors, and any other school or district staff involved in test administration are required to adhere to guidelines laid out in the Florida Test Security Statute, Section 228.301[14] and the FDOE State Board of Education Administration Rule 6A-10.042, Maintenance of Test Security,[15] as well as district policy and board rule regarding test security. Violations of test security provisions shall be subject to penalties as provided in statute and FDOE State Board of Education Administrative Rules. . . . After Respondent handed out the test materials to the students in his third period class on May 2, 2001, and provided them with instructions regarding the test, T. S., who was seated in the back row of the classroom, asked Respondent several questions about the test. Dissatisfied with Respondent's responses, T. S. got out of his seat and, with the test booklet and answer sheet in hand, headed towards Ms. Clayton's classroom to see if she could provide him with the information that he was seeking about the test. On a regular basis, T. S. would leave Respondent's classroom, without permission, before the end of the period and go into the hallway. Concerned that T. S. would go out into hallway with the test materials, Respondent followed T. S. T. S. was near the partial partition dividing Respondent's and Ms. Clayton's classrooms, facing Ms. Clayton, when Respondent caught up to T. S. T. S. started to ask Ms. Clayton a question, when he was interrupted by Respondent, who instructed T. S. to give him the test materials. Respondent had positioned himself so that he was in front of T. S. and "close enough to touch" him. T. S. did not hand over the test materials to Respondent; instead, he asked Respondent "to give him some space." Respondent, however, held his ground and again "asked for the test materials back." T. S. refused to return the test materials to Respondent, telling Respondent he was "just asking a question." Respondent then started to reach for the test materials in an effort to grab them out of T. S.'s hand. T. S. reacted by moving the hand in which he was holding the test materials away from Respondent so that Respondent would not be able to take the materials from him. During the scuffle, Respondent grabbed ahold of T. S.'s shirt and "pulled" it. He also bumped into T. S. as he was reaching for the test materials in T. S's hand. Upset that Respondent was "over [him], touching [him]," T. S. ripped up the test materials and threw the pieces at Respondent. He was going to hit Respondent, but was subdued by a classmate, R. D. He then walked out the door and into the hallway. Respondent returned to his classroom and went back to his desk. He was followed by R. D., who told Respondent that he "need[ed] to chill out." While talking to Respondent, R. D. put his hands on Respondent's desk. Respondent told R. D., "get your hands off my desk." Using his hand, Respondent then forcibly moved R. D.'s hands off the desk. What occurred during Respondent's third period class on May 2, 2001, was reported to the administration and the matter was investigated. Written statements from Respondent, Ms. Clayton, and T. S., as well as other students, were collected and reviewed as part of the investigation. Mr. Rodriguez scheduled a Conference-for-the-Record with Respondent for June 11, 2001. Before the conference was held, Respondent was involved in yet another incident in which he used physical force against a student in his class. The student on this occasion was A. D., and the incident occurred on June 7, 2001, at around 9:30 a.m. or 9:45 a. m., near the end of the first (two hour) class period of the school day. A. D. had engaged in disruptive behavior in Respondent's classroom before walking out of the classroom and into the hallway towards the end of the period. As A. D. was leaving, Respondent told him, "If you leave before the bell rings, I am not letting you back in this time." (This was not the first time that A. D. had walked out of Respondent's class before the period was over.) Deanna Lipschutz, a clerical employee assigned to American's exceptional student education department, saw A. D. in the hallway. A. D. was "walking around in circles," but he was not "out of control." Ms. Lipschutz approached A. D. and, after engaging in a brief conversation with him, escorted him back to Respondent's classroom. The door to the classroom was closed. Ms. Lipschutz knocked on the door. When Respondent opened the door, Ms. Lipschutz told him that A. D. "would like to come back in class." Respondent indicated that he would not let R. D. return. Respondent then took his hands, placed them on A. D.'s shoulders, and gave A. D. a "little push." A. D. stumbled backwards. There was a wall behind A. D. that A. D. nearly made contact with as he was stumbling backwards. After pushing A. D. away from the doorway, Respondent went back inside the classroom and closed the door. Respondent's use of physical force against A. D. on June 7, 2001, was reported to the administration and an investigation of the matter was commenced. This was the last of the incidents (specified in the School Board's Notice of Specific Charges, as amended) involving Respondent's use of physical force against a student. Respondent's use of physical force in each of these incidents (the February 28, 2001, incident with V. S.; the May 2, 2001, incidents with T. S. and R. D.; and the June 7, 2001, incident with A. D.) was contrary to School Board policy and unauthorized and, moreover, evinced poor judgment and a lack of adequate concern for the physical well-being of the EH student involved in the incident. In none of these incidents was the physical force Respondent used reasonably necessary to prevent physical harm to himself, the student involved in the incident, or anyone else, or to prevent the destruction or serious damage of property. Respondent did not use School Board-approved "physical restraint techniques" (which are referenced in Section 3 of Article VIII of the UTD Contract) in any of these incidents. Rather, he used physical methods that were more likely to provoke, than deter, aggressive student behavior and, in so doing, created conditions harmful to the exceptional education students in his charge. Furthermore, Respondent's use of these methods in the incidents involving T. S., R. D., and A. D. was in defiance of directives he had been given by Mr. Rodriguez during the March 15, 2001, Conference-for-the-Record. It is true that Respondent did not have an easy teaching assignment. He had students in his class who, because of their disability, made teaching quite difficult. As a certified EH teacher, however, Respondent should have been equipped to deal with these students' disruptive behavior without resorting to the use of unauthorized physical force. Respondent's repeated use of such force was so serious as to impair his effectiveness as an EH teacher. The Conference-for-the-Record with Respondent that Mr. Rodriguez had scheduled for June 11, 2001, was held as scheduled on that date. Mr. Rodriguez subsequently prepared (on June 13, 2001) and furnished to Respondent (on that same date) a memorandum in which he summarized what had transpired at the conference. The memorandum read as follows: The following is a summary of the conference-for-the-record on Monday, June 11, 2001, at 8:00 a.m. in this administrator's office. Present at the conference were: Karen Robinson, assistant principal; Mark Soffian, assistant principal; Jimmy Jones, UTD Representative; Sherri Greenberg, UTD Bargaining Agent Representative, yourself and this administrator. The purpose of the conference was to address the following: -Miami-Dade County School Board Police Case #F13868 (Substantiated) -Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -School Board Rule 6Gx13-4A-1.21 (Employee Conduct) -Review of the record -Future employment with Miami-Dade County Public Schools This administrator began the conference by reviewing written statements from several students, a teacher and yourself in the School Board Case #F13868. This administrator informed you that your actions were in violation of School Board Rule 6Gx13-5D-1.07 of using corporal punishment and inappropriate physical restraint as a means of disciplining your students. This administrator asked if you had a response to these statements. You stated that you had seven years of university training and a master's in SED and you had a perfect record of no incidents at Miami Central High School. You requested to read a letter from Clifford Golden, School Psychologist, that you wished to be included in the record's summary. Additionally, you stated that "I had no problems until I came to American and it has been a difficult situation. When I first got here, you told me at a staff meeting about an ongoing LED conspiracy." This administrator corrected you about the contents of my statement as saying that "there was never a mention of a conspiracy; however, I was concerned with the quality of instructional delivery in the Exceptional Education department." You continued stating that your colleagues were less than helpful, and that no one came to your class, and that Mr. Kucharsky, Behavior Management Teacher, did not show consistent discipline. This administrator informed you that when he visited you classroom during second period, he observed on several occasions that on one side of the room with another teacher there were students learning; however, on your side there was bedlam. Dr. Soffian indicated when he visited your class on three occasions, he observed your room to be in disarray, with books on the floor, desks overturned and students not engaged in any productive activity. Mr. Jones also indicated upon his visitation, he observed that your kids were "out of control." You responded that "I have frequent misbehavior from that class but no one provided any consequences when I wrote them up." This administrator then reviewed with you the State Board of Education Rule, Code of Ethics (6B-1.001, 6B-1.006). This administrator read to you that your obligation to the student requires that "you shall make reasonable effort to protect the student from conditions harmful to learning, to the student's mental and/or physical health and/or safety." This administrator reminded that this is the second time he is issuing you this material and as a professional teacher you are obligated to comply with this code. You responded by saying you disagreed with the statement of using corporal punishment and that due to the classroom not having ventilation and being an old chorus room exacerbates the problem. This administrator reviewed your record, citing a pattern of putting your hands on students. This administrator reviewed with you two other incidents of unnecessary physical contact of your students (Miami- Dade County Police Cases #F03631 & F09343). This administrator read to you Part III, page 121, from the handout of Special Programs and Procedures for Exceptional Students (6Gx13-6A-1.331): "Some exceptional students because of the nature of the disability, may on occasion experience impaired impulse control of such severity that the use of physical restrain[t] is necessary to prevent such students from inflicting harm to self and/or others, or from causing damage to property." This administrator stated that your actions were not justified because the student was not doing any of the above. You responded that you disagreed with the findings. You felt that the student leaving with the test booklet caused you to physically intervene and you interpreted this action as preventing property damage. You further commented that you were a seasoned professional and that you have never hurt a student in your entire professional career. In the other cases, you stated that you were the victim and sometimes it is necessary to intervene to protect their health and safety. This administrator referred you to the District's Support Agency Program. This administrator informed you that this supervisory referral is strictly voluntary and that you will be contacted by that office. You stated that you certainly would pursue this. This administrator reviewed with you your Annual Evaluation for the 2000-2001 school year. This administrator explained that Categories I-VI were acceptable; however, Category VII, Professional Responsibilities, was unacceptable.[16] This administrator issued you and explained the prescription and the unacceptable Annual Evaluation. This administrator also explained to you that this prescriptive status would freeze your salary, revoke your transfer request, and exclude you from summer employment. You asked if your salary would be retroactive and if you would be able to transfer after the prescription date. This administrator informed you that after you have met your prescription requirement then you would be free to transfer and your salary will be reinstated and retroactive to the beginning of the 2001-2002 school year. This administrator asked if anyone had any other questions. Ms. Sherrie Greenberg, UTD representative, suggested that you receive training in physical restraint the next time it is offered. This administrator agreed with that suggestion as soon as a class opens. Ms. Greenberg also suggested to you that the District's Emotionally Handicapped supervisor visit your classroom at the beginning of the school year and provide assistance as needed. This administrator agreed with this suggestion of any additional support to improve classroom management. This administrator reminded you that per your request, your six period schedule during this second period class was changed to a five-period day. This administrator issued you the following directives: -Refrain from using any physical means to enforce student discipline, particularly if the student(s)' or your safety [is] not endangered and/or damage of property is not imminent -Adhere to Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida -Adhere to School Board Rule 6Gx13-5D-1.07 (Corporal Punishment-Prohibited) -Adhere to School Board Rule 6Gx13-4A-1.21 (Employee Conduct) In closing, this administrator informed you that this is the second time a conference- for-the-record has been held with you concerning the same issues. Due to your failures to comply with the previous directives, this administrator deemed this behavior as insubordination. This administrator indicated that continued failure to comply with these directives and recurrences of this type would result in further disciplinary action which will adversely affect your future employment status. This administrator stated that he would be available to provide you any assistance that you may require. In conclusion, you are apprised of your right to append, clarify, or explain any information recorded in this conference by this summary. The "prescription" that Mr. Rodriguez issued for Respondent indicated that Respondent would be in "prescriptive status" from August 27, 2001, through November 1, 2001. Respondent, however, did not return to the classroom during the 2001-2002 school year. Shortly before the beginning of the 2001-2002 school year, Dr. Thomasina O'Donnell, a director in the School Board's Office of Professional Standards, conducted a Conference-for- the-Record with Respondent, at which she discussed Respondent's use of physical force against students at American, including the June 7, 2001, incident with A. D., and his future employment with the School Board. Dr. O'Donnell subsequently prepared (on August 27, 2001) and mailed to Respondent (on August 28, 2001) a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Dr. O'Donnell wrote the following: Action Taken In consideration of this incident and conference data, you were placed in an alternate work assignment at Region I until disposition of the charges are determined . You were advised of the availability of services from the District's referral agency. You were also provided the option to resign your position with Miami-Dade County Public Schools which you declined at this time. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated upon your return to the worksite to prevent adverse impact to the operation of the work unit and to the services provided to students. Noncompliance with these directives will necessitate review by the Office of Professional Standards. Refrain from using physical means to effect discipline. Adhere to all School Board Rules and the Code of Ethics. Supervise assigned students at all times. During the conference, you were provided with a copy of School Board Rules 6Gx13-4A- 1.21, Responsibilities and Duties; 6Gx13-5D- 1.07 Corporal Punishment-Prohibited; and Chapter 6B-1.0[0]1(3), Code of Ethics of the Education Profession in Florida. You were advised of the high esteem in which teachers are held and of the District's concern for any behavior which adversely [a]ffects this level of professionalism. You were reminded of the prime directive to maintain a safe learning environment for all students and that your actions violated this directive. You were advised to keep the information presented in this conference confidential and not discuss this with students or staff. Action To Be Taken You were advised that the information presented at this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Superintendent of Region I, and the Principal of American Senior High School. All investigative data will be transmitted to Professional Practices Services (PPS), Florida Department of Education, for review and possible licensure action by the Education Practices Commission (EPC). Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Region Superintendent will compel formal notification of the recommended action or disciplinary measures to include suspension or dismissal. A determination was made that Respondent "be recommended for dismissal for the following charges: Just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07 Corporal Punishment-Prohibited." On September 25, 2001, Dr. O'Donnell held a Conference-for-the-Record with Respondent to discuss this recommendation. At its October 24, 2001, meeting, the School Board took action to "suspend [Respondent] and initiate dismissal proceedings against [him] from all employment by the Miami-Dade County Public Schools, effective the close of the workday, October 24, 2001, for just cause, including but not limited to: misconduct in office, gross insubordination, and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties, and 6Gx13-5D-1.07, Corporal Punishment-Prohibited."17
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for the reasons set forth in the Notice of Specific Charges, as amended. DONE AND ENTERED this 14th day of August, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2002.
