The Issue Whether the Respondent's employment with the Petitioner should be terminated as alleged in the Amended Notice of Specific Charges filed on July 31, 2000.
Findings Of Fact At all times material to the allegations of this case, the Respondent was employed as a math teacher at Mays Middle. As such, the Respondent was responsible for the day-to-day teaching assignment of the students enrolled in his class. The Respondent's duties also encompassed maintaining the appropriate records to be in order to fulfill his teaching responsibilities. These records included lesson plans, grade sheets, attendance records, class rosters, and time cards. The Petitioner is the agency charged by Florida law to administer the public schools within the Miami-Dade County School District. The Petitioner is authorized to hire and to, when appropriate, discipline teachers within the Miami-Dade County school system. Mays Middle is a public school within the Petitioner's district. At all times material to the allegations of this case, Mr. Cooper was the principal at Mays Middle and was the supervisor responsible for personnel performance at the school. He has been a principal at several schools within the Miami-Dade school district and is a candidate for a doctorate degree in educational leadership. Mr. Cooper met the Respondent in approximately 1997 when he became the principal at Mays Middle. The Respondent was already employed at Mays Middle as a math teacher. All teachers at Mays Middle are required to attend faculty meetings, to turn-in class lists, to maintain teacher logs, to compile grades for students, to arrive at work on time prepared to teach, and to prepare appropriate lesson plans to be followed for the instruction of the students in the event the teacher is absent from school. All teachers at Mays Middle are provided with a faculty handbook that outlines their responsibilities. All teachers are required to follow the directives and instructions issued by the school principal regarding their responsibilities. All teachers who are cited for a performance deficiency are issued a prescription to address the identified problem. The prescription requires the teacher to perform specific acts to encourage remediation of the deficiency within a specified time. On November 17, 1998, Mr. Cooper issued a reprimand to the Respondent. This reprimand cited the Respondent's failure to notify or report to the worksite on November 6, 1998, and his failure to submit grades with gradesheets in a timely manner. In connection with this reprimand, Mr. Cooper conducted a conference for the record (CFR) with the Respondent in order to review the professional responsibilities of reporting to school timely or notifying the school and of submitting required paperwork in a timely manner. On January 13, 1999, the Assistant Principal, Mrs. Kaloostian, went to the Respondent's classroom to perform an observation. The class was to run from 9:30 a.m. until 11:15 a.m. Instead of beginning class promptly with the bell, the Respondent left the room after observing Mrs. Kaloostian in the rear of the classroom. Instead of returning to teach the class, the Respondent returned to the room at approximately 9:40 a.m., removed his bags and announced he was going home. Thereafter the school administrators attempted to locate a substitute for the Respondent's classes. The Respondent did not leave emergency lesson plans for the classes. Emergency lesson plans are required of all teachers so that a substitute teacher has material to review with the class. In this case, the Respondent did not leave plans for the day he left or the two days that followed. On January 22, 1999, Mr. Cooper conducted another CFR with the Respondent. This time the Respondent was placed on prescription for his conduct of January 13, 1999, and his failure to report to work the next two days. The doctor's note submitted by the Respondent to justify the absence indicated the Respondent was able to return to work on January 14, 1999. The prescription issued on January 22, 1999, outlined directives regarding lesson plans, attendance guidelines, the teacher code of ethics, and employee conduct requirements. The timelines for the Respondent's completion of these prescription directives were defined, ample, and unambiguous. When the Respondent did not timely complete the prescription, he was afforded additional time within which to complete the prescription directives. On February 17, 1999, the Respondent arrived at a faculty meeting 20 minutes late. The Respondent later stated that the tardiness was unintentional. On February 25, 1999, the Respondent was given a reprimand. Mr. Cooper conducted a CFR to review the attendance requirements and to address the Respondent's continuing failure to meet his professional responsibilities. All teachers employed by the Petitioner are evaluated pursuant to a Teacher Assessment and Development System (TADS). TADS evaluators must be trained in the assessment tool and all teachers are advised of the categories covered by the instrument. Mrs. Kaloostian performed a formal TADS observation of the Respondent's class on February 18, 1999. This evaluation cited the Respondent with deficiencies in six categories covered by the assessment tool. The prescription issued with the TADS evaluation provided the Respondent with specific corrective measures to be completed by March 26, 1999. On March 1, 1999, the Respondent reported late to work. On March 23, 1999, the Respondent reported late to work and failed to attend a faculty meeting. On April 2, 1999, Mr. Cooper issued a reprimand to the Respondent for insubordination, failure to comply with attendance directives, and failure to comply with directives regarding tardiness or absences. On March 23, 1999, Mrs. Kaloostian performed a TADS observation in the Respondent's class. This assessment found the Respondent deficient in five categories of performance. The Respondent was provided a prescription to be completed by May 4, 1999. Under the terms of the teachers' contract, the successful completion of prescription requirements results in the remediation of the deficiency identified. Thus a teacher on prescription must complete the directives of the prescription in order to show remediation. The Petitioner makes personnel and other resources available to a teacher to assist the completion of the prescription. On April 12, 1999, the Respondent refused to sign a time card as directed by the Principal. The Respondent disagreed with the information on the card and refused to comply with Mr. Cooper's instruction to sign the card. Following this incident, the Respondent was given a written reprimand. On May 4, 1999, Mrs. Kaloostian wrote a memorandum to Mr. Cooper outlining the Respondent's failures regarding the prescription that was to be completed by that date. On May 5, 1999, Mr. Cooper gave the Respondent an additional 24 hours to complete the TADS prescription materials. On May 13, 1999, the Respondent asked to speak with Mrs. Kaloostian. At that time he gave her a letter describing his medical problems and represented that he would be seeking a medical leave effective the end of the school day. After completing papers regarding the leave, the Respondent refused to deliver his gradebook to Mrs. Kaloostian. He was asked several times to turn the gradebook in and each time he refused. The Respondent represented he would deliver it the next day at 9:00 a.m. He did not return the gradebook by 2:00 p.m., May 14, 1999. In addition to not delivering the gradebook, the lesson plans for Respondent's classes were not provided. As a result the math department chair had to provide lessons for the Respondent's classes. On or about June 14, 1999, the Respondent turned in his gradebook through another teacher. The gradebook was deficient in the information it was designed to log. On May 14, 1999, the Respondent did not attend a scheduled CFR. Accordingly, the record of the deficiencies cited by Mr. Cooper and the prescription for correction was provided to the Respondent by certified mail. Such prescription noted the Respondent's continuous failure to meet the prescription activities. During the 1998/1999 school year, the Respondent was absent from school 42.5 days. Nineteen of those days occurred prior to May 14, 1999. From February 6, 1998 through April 1, 1999, the Respondent received five prescriptions for Category VII deficiencies in professional responsibilities. On August 9, 1999, Dr. O'Donnell, director of the Office of Professional Standards, conducted a CFR with the Respondent. The conference addressed Respondent's performance assessments, attendance, medical fitness to perform his duties, noncompliance with directives, violations of the Code of Ethics, and future employment with the Petitioner. Following the CFR the Respondent was to return to Mays Middle to assume his responsibilities on August 26, 1999. In order to afford the Respondent with additional time to complete his prescriptions, the 90-calendar day probationary period was extended. Since he did not timely complete the prescription but effected medical leave commencing May 14, 1999, the time for formal observations was extended. All parties knew the observation would be conducted between September 13, 1999, and October 19, 1999. Moreover, the Respondent knew as a result of the CFR that he would be required to comply with his professional responsibilities. Nevertheless, on August 31, 1999, the Respondent failed to submit class counts; he did not submit emergency lesson plans on September 3, 1999; and he did not provide a class list on September 8, 1999. As a result, Mr. Cooper conducted a CFR on September 17, 1999. The Respondent was deemed insubordinate in all of the areas of professional responsibilities that had been previously delineated. He knew or should have known that the administration was not going to tolerate the failures to submit the required documents. Further, he knew or should have known that the untimely submission of the documents would also not be acceptable. If the Respondent had a medical condition that impaired his ability to timely complete and submit his records, he did not fully explain it to Mr. Cooper. On September 15, 1999, between 9:30 a.m. and 11:15 a.m., Mrs. Kaloostian observed the Respondent's class and performed a TADS assessment. The Respondent knew or should have known the assessment would be forthcoming. He had ample opportunity to be prepared for the assessment. He was not. The deficiencies cited in the September 15, 1999, evaluation required prescriptive remediations to be completed by October 1, 1999. Again the prescription identified persons available to the Respondent to assist in the prescription activities. The Respondent did not timely complete the prescription and was given 24 additional hours to complete the work. The Respondent failed to submit attendance cards on time on September 5, 1999, and September 7, 1999. The Respondent failed to timely submit Student Interim Progress Reports on October 6, 1999. On October 5, 1999, Mr. Cooper performed a TADS observation in the Respondent's class. Deficiencies were outlined and the Respondent was provided until October 19, 1999, to complete the prescriptive activities. On October 22, 1999, Mr. Cooper performed a TADS observation in the Respondent's class. This observation also established deficiencies in the Respondent's performance. Consequently, Mr. Cooper recommended that the Respondent's employment with the School District be terminated. On November 3, 1999, the superintendent of schools issued a letter advising the Respondent that the Petitioner would take action on November 17, 1999, regarding the recommendation to terminate the Respondent's employment contract. The Petitioner did approve the termination as outlined by the superintendent's letter. Thereafter, the Respondent timely challenged the action and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. At the hearing, the Respondent did not provide a credible explanation as to why he failed or refused to complete the prescriptions that were provided for him. He did not provide a credible response as to why he failed to be punctual with reports, attendance of meetings, or to comply with the directives provided by the principal and assistant principal. The directives and suggestions were reasonable in nature and should have afforded the Respondent with an ample opportunity to correct the performance deficiencies. At all times the Respondent was entitled to and had a representative from the union to advise him and to assist him for the CFRs conducted with school personnel. The Respondent was repeatedly offered additional time to complete prescriptive assignments. The Respondent was offered assistance and resources to complete the prescriptive assignments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the termination of the Respondent's employment with the Miami-Dade County School District be affirmed. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001. COPIES FURNISHED: Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Room 912 Miami, Florida 33132-1308 Charlie L. Bradley 130 Northwest 193rd Terrace Miami, Florida 33169 John Greco, Esquire Miami-Dade County School Board 1450 North East Second Avenue, Suite 400 Miami, Florida 33132 Paul J. Schwiep, Esquire Aragon, Burlington, Weil & Crockett, P.A. Office in the Grove, Penthouse 2699 South Bayshore Drive Miami, Florida 33133
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Board is responsible for the operation of the public schools within the Dade County School District. Teachers assigned to the various schools are recommended to the Superintendent for employment or contract renewal by their respective principals. The Superintendent, in turn, presents a recommendation regarding the teacher's employment to the Board. At all times material to the disputed facts of this case, Respondent was a teacher employed by the Board and assigned to a public school within the district. Teachers employed by the Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system records deficiencies which may have been observed during the evaluation review and provides a prescription (a plan) for performance improvement. At all times material to this case, the TADS method was employed to evaluate the Respondent's performance. Respondent began employment with the Dade County public schools in September, 1961, and taught until February 13, 1963. She returned to teaching in March, 1982, and was employed pursuant to a professional service contract. During the 1986-87 school year, Respondent was assigned to a second grade class at Ojus Elementary School (Ojus). Jeanne Friedman was the principal at Ojus and was primarily responsible for Respondent's TADS evaluation. At the conclusion of the 1986-87 school year, Respondent was given an annual evaluation. This evaluation found the Respondent deficient in four of the seven areas of evaluation. Specifically, Respondent was found to be in need of remediation in the following categories: knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relations. A prescription was devised to assist Respondent improve in the areas deemed to be deficient, and she was informed that should she not improve in the areas noted by the end of the next year, that she would not be recommended for employment for the 1988-89 school year. The evaluation for the 1986-87 school year was predicated on observations which had been conducted on December 5, 1986, January 22, 1987, and March 2, 1987. On December 5, 1986, Jeanne Friedman conducted a TADS evaluation of the Respondent. Ms. Friedman met with Respondent on December 11, 1986, to review the evaluation and to assist in the implementation of the prescription. On December 18, 1986, a conference for the record was held to address the Respondent's performance and her future employment status. At this meeting, Respondent was reminded of the suggestions given to correct the deficiencies noted in the evaluation conducted December 5, 1986. Those deficiencies were related to Respondent's preparation and planning. On January 22, 1987, Respondent was evaluated in follow-up to the December review. This observation was discussed with the Respondent on January 23, 1987. Respondent's prescription for the deficiencies noted in this evaluation required corrections to be implemented by February 2, 1987. The deficiencies were in the area of preparation and planning. On March 2, 1987, Respondent was evaluated by Jeanne Friedman and Emilio Fox. The evaluations were performed during the same class period, language arts, but the evaluators did not communicate with one another nor compare their notes regarding Respondent's performance. Both evaluators found the Respondent to be deficient in three of the areas of evaluation: preparation and planning, knowledge of subject matter, and techniques of instruction. Respondent had failed to follow the lesson plan book for the entire class time, had failed to plan the activity which was conducted, wrote several erroneous items on the class board, and did not explain the nature of the lesson to the class. Several of Respondent's errors were brought to her attention by the students (second graders). Margaret Roderick and Leeomia Kelly evaluated Respondent on April 27, 1987. These TADS assessments found Respondent deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. On May 29, 1987, a conference for the record was held regarding Respondent's poor performance year. At that time, Respondent was advised that if she failed to remediate the areas noted to be deficient by the end of the 1987-88 school year, she would not be recommended for continued employment. At her request, Respondent was assigned to a kindergarten class at Ojus for the 1987-88 school year. Approximately 30 students were initially enrolled in Respondent's section. A second kindergarten section was taught by Ms. Kramer. A TADS evaluation conducted by Leeomia Kelly on September 17, 1987, found Respondent to be acceptable in all categories reviewed. After this evaluation, several parents wrote to Ms. Friedman asking that their children be moved from Respondent's class to Ms. Kramer's section. The number of students enrolled in Respondent's class dropped to approximately 23. On October 22, 1987, Jeanne Friedman conducted an observation of the Respondent's class. This evaluation found the Respondent deficient in the area of classroom management. Ms. Friedman met with Respondent on October 23, 1987, to go over the prescription for improvement and outlined a time deadline for each suggested resource. A second evaluation conducted on November 30, 1987, also found the Respondent deficient in the area of classroom management. On December 11, 1987, a conference for the record was conducted to review Respondent's performance. Respondent was reminded that a failure to correct deficient areas would result in termination of employment. Doretha Mingo and Leeomia Kelly conducted evaluations of Respondent on March 1, 1988. These evaluators found Respondent deficient in the areas of classroom management, techniques of instruction, and teacher-student relationships. On March 9, 1988, a conference for the record was held to summarize Respondent's work performance. At that time Respondent was given an annual evaluation which found her to be unacceptable in the following areas of performance: classroom management, techniques of instruction, and teacher- student relationships. Respondent was notified at this conference that the principal would be recommending nonrenewal of the employment contract. Respondent was observed on April 13, 1988, by Ms. Friedman and Michael Conte. Both evaluators found Respondent to be deficient in the areas of classroom management and techniques of instruction. In each of the TADS reviews given to Respondent, conclusions of deficiency were based upon objective observations made during the class period. For example, students found to be off task were observed to be disregarding Respondent's instructions and findings of inadequate planning were based upon inadequacies found in Respondent's plan book (not describing the lesson taught or incompletely stating the subject matter). In each instance, Respondent was given a prescription as to how to correct the noted deficiency. Respondent was given copies of the evaluations at the time they were reviewed with her. Further, Respondent was given copies of the memoranda kept regarding the conferences for the record. Resources were offered to Respondent to assist her to make the corrections required. On April 25, 1988, Respondent was notified that the subject of her continued employment would be raised at the Board meeting to be conducted April 27, 1988. Respondent was advised that the Superintendent intended to recommend nonrenewal of Respondent's contract which, if accepted, would preclude future employment. This letter was written by Patrick Gray, Executive Assistant Superintendent. The Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1988-89 school year. On April 28, 1988, Patrick Gray wrote to Respondent to advise her of the Board's action. In each of the years for which she received unacceptable evaluations, Respondent's students performed satisfactorily on school-administered standardized tests. Such tests were not, however, gauged to measure the subject matter which Respondent had been responsible for teaching in those years. During the 1987-88 school year Respondent failed to correct the deficiencies in performance which had been identified during the 1986-87 school year. Respondent repeatedly failed to perform the duties which were expected of her despite many attempts to assist her with any remediation needed. Further, by her failure to remediate in the areas of classroom management and techniques of instruction, Respondent failed to communicate with her students to such an extent that they were deprived of a minimum educational experience.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE and RECOMMENDED this 20th day of March, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2798 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 3 are accepted. The first 3 sentences of paragraph 4 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 5 through 12 are accepted. The first two sentences of paragraph 13 are accepted. The last sentence is rejected as irrelevant commentary. Paragraphs 14 through 19 are accepted. With the deletion of the phrase "sometime in February, 1988," and the following qualification, paragraph 20 is accepted. The opinions expressed by the parents were based upon the observations made and not necessarily the comment of their children. The parents drew the conclusions based upon their observation but no conclusion is reached by the undersigned as to the accuracy of those conclusions. It will suffice for the purposes herein that the-parents believed their conclusions to be correct. No time was clearly established for the parental comments regarding Respondent's ability or performance. Paragraph 21 is accepted. With regard to paragraph 22, with the following qualification, it is accepted. The opinion expressed by Conte that students "were not comprehending what they were doing or what they were supposed to be doing ..." Such comments have not been considered as Mr. Cote's ability to read the minds of the children. Rather, such comments have been read to more accurately mean: based upon his experience and expertise, "the students did not appear to comprehend, etc." The last sentence of paragraph 22 is rejected as argument. Paragraphs 23 through 25 are accepted. Paragraphs 26 through 28 are rejected as irrelevant, argument, conclusions of law or comment not appropriate for a finding of fact. Paragraphs 29 and 30 are accepted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT AS SET FORTH IN THE AMENDED RECOMMENDED ORDER (HAVING PRESUMED IT SUPERSEDED THE EARLIER FILED RECOMMENDED ORDER): Paragraph 1 is accepted as to Respondent's age but the balance is rejected as unsupported by the record. The weight of the evidence established Respondent has not taught for 32 years. She has been a teacher by profession that long but not working all that time. Paragraphs 2-4 are accepted. Paragraph 5 is rejected as argument or a conclusion of law not accurate under the facts of this case. Paragraph 6 is accepted to the extent the subject matter is qualified and addressed in finding of fact paragraph 22, otherwise is rejected as contrary to the weight of the evidence or irrelevant to the conclusions reached herein. Paragraphs 7 and 8 are rejected as contrary to the weight of credible evidence presented. Paragraph 9 is accepted. Paragraph 10 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Frank Harder Twin Oaks Building, Suite 100 Dr. Joseph A. Fernandez 2780 Galloway Road Superintendent Miami, Florida 33165 School Board of Dade County 1450 Northeast 2nd Avenue William DuFresne Miami, Florida 33132 DuFRESNE AND BRADLEY 2929 South West Third Avenue, Suite One Miami, Florida 33129 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed October 28, 2011, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a contract that is subject to a collective bargaining agreement between Petitioner and the United Teachers of Dade, applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Near the end of the 2009-2010 school year, Respondent was placed on a 25-day suspension without pay for having inappropriate communications with students. Prior to serving her suspension, Respondent was issued directives that she was not to make personal comments to students and she was not to communicate with students via text and personal letters at any time. For the 2010-2011 school year, Ms. Yassin was assigned to South Miami Community Middle School (SMCMS), where she taught language arts to five classes. Ms. Alvarez was the principal of SMCMS for the 2010-2011 school year. Ms. Yassin's suspension ended in October 2010, at which time she reported for duty at SMCMS. Shortly after Ms. Yassin reported for duty at SMCMS, Ms. Alvarez received a complaint from a parent that Respondent had requested that students bring school supplies into class in exchange for receiving extra academic credit. Ms. Alvarez held a conference with Respondent. Ms. Alvarez instructed Ms. Yassin that School Board rules prohibit a teacher from giving extra academic credit in exchange for a student providing school supplies. Ms. Alvarez specifically told Ms. Yassin to cease and desist that practice. Ms. Yassin admitted that she had given extra academic credit to students who had brought in school supplies and told Ms. Alvarez that it would not happen again. In January 2011, Ms. Alvarez received a complaint from a student in one of Ms. Yassin's classes that Ms. Yassin had offered the students in the class assistance on a test in exchange for students bringing items of food to Ms. Yassin. There was a conflict in the evidence as to whether Ms. Yassin offered her students assistance on tests if they brought candy and other food items such as pastries to her. The greater weight of the credible evidence established that during the 2010-2011 school year, Ms. Yassin made such an offer to students in one or more of her classes on one or more occasions. Ms. Alvarez verbally informed Ms. Yassin of the allegations and told her that an investigation would be initiated. There was also a conflict as to whether Ms. Yassin quizzed her students as to the investigation and as to whether she made inappropriate comments to students about the investigation. The conflict is resolved by finding that Ms. Yassin made inappropriate comments to one or more students to lie about Ms. Yassin's conduct and told other students "to watch her back." Ms. Yassin also quizzed one or more students as to the discussion the student(s) had had with the investigator. On January 12, 2011, Respondent was removed from MSCMS and placed on alternative assignment. Respondent was specifically informed that she "must not contact, visit or exchange in any type of communications with faculty/staff/students/family of students from the work location to which you were assigned at the time of the incident leading to this administrative placement." Ms. Yassin violated that clear and unequivocal directive by communicating with parents and students by text and email between January 12 and February 3, 2011.1/ Respondent's misconduct, as described herein, has impaired her effectiveness in the school system. Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay and terminate that employment based on misconduct in office and gross insubordination. DONE AND ENTERED this 17th day of May, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 17th day of May, 2012.
The Issue Whether just cause exists to sustain Respondent’s ten-workday suspension from employment with the Miami-Dade County School Board (“School Board” or “Petitioner”).
Findings Of Fact At all times material hereto, Petitioner was a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes. Respondent was hired as a full-time teacher at Mandarin Lakes K-8 Center Academy (“Mandarin Lakes”) and was employed there as a teacher of emotionally behavior disabled (“EBD”) students when all events material to this case took place. She has been employed in the School District for 14 years and, prior to that, for two years in the School District of Broward County, Florida. She has been an EBD teacher throughout her career. As a teacher, Respondent was subject to School Board policies and the collective bargaining agreement under United Teachers of Dade, as well as the Florida State Board of Education. During the 2019-2020 school year, D.J. and I.N. were students in Respondent’s classroom. D.J. was in the EBD class, which is a class for students with an emotional disability. No evidence of record concerning whether I.N. is an EBD student, as well, was presented. I.N. was a student along with D.J. in Respondent’s class who is currently in the fourth grade, however, they are not friends he said. I.N. had heard Respondent yell at D.J. prior to this incident. On October 10, 2019, D.J. asked Respondent to use the bathroom and Respondent said, “No.” D.J. said he was going to pee on himself. This was known by Respondent as behavior she had seen often after the lunch period when the students were not eager to return to school work. Respondent did not allow D.J. to use the bathroom. Respondent called D.J. “pissy,” and it caused the students in the class, including I.N., to laugh. After that, D.J. started to get mad or angry, and D.J. started to hit his head with his hand. Also, D.J. felt “bad” about the situation. Respondent did nothing to stop the students from laughing at D.J. Respondent then asked D.J. if he wanted to be Baker Acted after she observed him picking a scab, which caused it to bleed, and hitting himself on the head. When he got home later that day, D.J. was still upset, so he told his mother what happened at school and asked her what a Baker Act was. D.J.’s siblings have severe mental health issues and have been Baker Acted before; therefore, it was concerning to C.R. (D.J.’s mother) that Respondent made the Baker Act comment to D.J. D.J. told his mother that Respondent called him “pissy” because he went to the bathroom a lot. D.J. was taking medication at the time, of which Respondent was aware, that caused him to have to use the bathroom a lot. D.J. was seven years old when he testified at hearing and was recalling an incident that happened when he was five to six years old. After the incident, D.J. started to say that he wanted to be Baker Acted so he could be with his brother, who at the time was subject to a Baker Act commitment. At that time, C.R. wrote a statement detailing the incident from her perspective, which was consistent with her testimony at hearing. Respondent admitted to using the word “pissy.” Respondent also admitted to making a comment about Baker Acting D.J. because D.J. pulled at a scab and rubbed the blood on himself and also because he smacked himself on the head. Later, Respondent admitted during cross-examination that the scab incident did not occur on the same day as the Baker Act comment and was unrelated. She further admitted that she is not qualified to Baker Act someone and was not serious about D.J. being Baker Acted. This was an “unfortunate incident,” and Respondent apologized for it. D.J. has remained Respondent’s student for nearly a year and a half since the two incidents occurred in 2019. Respondent has maintained a good relationship with both D.J. and his mother. The School Board and the United Teachers of Dade, the classroom teachers’ union, have agreed to be bound by the principle of progressive discipline and that discipline imposed shall be consistent with that principle. Accordingly, they have agreed that the degree of discipline shall be reasonably related to the seriousness of the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Miami-Dade County School Board issue a written reprimand to Respondent. DONE AND ENTERED this 1st day of April, 2021, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2021. COPIES FURNISHED: Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether just cause exists for Petitioner to suspend Respondent’s employment as a teacher without pay for 15 days.
Findings Of Fact The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. Respondent was initially hired by the School Board in August 1998. Respondent is currently employed by the School Board as a teacher at Gulfstream Academy (K-8), pursuant to a Professional Services Contract, issued in accordance with section 1012.33(3)(a), Florida Statutes (2014). Respondent teaches Microsoft Office applications and computer coding. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law and the School Board’s policies. The conduct giving rise to the School Board’s proposed suspension of Respondent involves a series of threats by Respondent on June 25, 2015, to resort to “extreme violence.” On this day, Respondent was frustrated because she believed the School board had placed her salary at the incorrect “step” level and that she was owed for certain days in 2015 while teaching at McArthur High School during the previous school year. Against this backdrop, at approximately 2:15 p.m. on Thursday, June 25, 2015, Terry Kopelman, a clerk for Talent and Operations at the School Board, received a telephone call from Respondent requesting to speak with the director, Susan Rockelman. Ms. Kopelman told Respondent that Ms. Rockelman was not in her office and that she did not have voicemail. Ms. Kopelman advised Respondent that if she calls again, she should speak with Susan Cooper in the School Board’s Employee Labor Relations Department. In response, Respondent threatened to resort to “extreme violence.” Ms. Kopelman was frightened by Respondent’s remarks, so she placed Respondent on hold and got her supervisor, Golda Hoff. Around this same time, Ms. Rockelman also appeared at Ms. Kopelman’s cubicle. Ms. Kopelman put Respondent on speakerphone, at which time Respondent repeated her threat to resort to “extreme violence.” Ms. Rockelman asked Respondent if she was threatening her, and Respondent responded by repeating, several times, the same threat to resort to “extreme violence.” Ms. Rockelman viewed Respondent’s remarks as a serious threat towards herself and other office workers who had spoken to Respondent. That same day, Ms. Rockelman reported Respondent’s threats to the Chief of Police of the School Board’s police department and to the Fort Lauderdale Police Department. During the afternoon of June 25, 2015, Respondent also called the School Board’s Employee and Labor Relations Department in an effort to speak with Ms. Cooper. Sherline Manzo, an employee of the department answered the telephone call from Respondent. During the call, Respondent was irate and yelled at Ms. Manzo. Respondent told Ms. Manzo to take the following message verbatim for Ms. Cooper: “I am severely disabled and have autism and you are beyond my patience and tolerance level and will now resort to extreme violence to elevate my frustrations.” Ms. Manzo asked Respondent if there was anything else she could help her with, but Respondent told her no. Respondent told Ms. Manzo to re-read the statement to make sure Ms. Cooper received the exact message. Ms. Manzo viewed Respondent’s remarks as a serious threat of workplace violence, which conjured images in Ms. Manzo’s mind of a “post office incident where one of the employees came in . . . and started shooting their colleagues.” Ms. Manzo relayed the message to Ms. Cooper that same day. Ms. Cooper viewed Respondent’s remarks as a serious threat of violence which needed to be urgently addressed. On June 25, 2015, at approximately 2:35 p.m., Respondent also called the Florida Education Association (“FEA”), an organization in Tallahassee, Florida, which represents teachers in school districts throughout Florida. Tamara Odom, a legal secretary at FEA who had spoken to Respondent on prior occasions and was familiar with her voice, retrieved the following voicemail message left by Respondent on an FEA telephone at 2:35 p.m. on June 25, 2015: This is Diane Neville, personnel number 31013 with the School Board Broward County. I am tired of people hanging up on me. I am tired of being shuffled into voicemail and no one picking up the phone. I have no more patience. I have no more tolerance. I’m severely disabled. I have autism. I am now going to resort to extreme violence. Thank you all so much. The sooner you get back to me the happier I’ll be. Because right now I am at the level of act out the violence. Thank you. On her voicemail, Respondent emphasized the point of “extreme violence.”2/ Respondent’s voicemail was taken seriously by Ms. Odom as a threat. In response to the voicemail, FEA contacted law enforcement and Respondent’s photograph was posted at the front door with instructions not to let her inside. Subsequently, Respondent showed up in Tallahassee at the FEA building, at which time she was met by law enforcement personnel. During the afternoon on June 25, 2015, Respondent also called the Broward Teachers Union (“BTU”) in Fort Lauderdale, Florida. BTU is a union which negotiates the teacher contract in conjunction with the School Board and provides support and assistance to its union members. Ms. Kathy Goldweber, a BTU office manager, retrieved the following voicemail message left by Respondent on an FEA telephone on June 25, 2015: Hi Kathy This is Diane Neville. I don’t know if you are familiar with my case. I am a severely disabled teacher. I have two forms of [ ] including Aspergers. I am now pretty much beyond my patience and beyond my tolerance. I have not been paid in over seven weeks. I am going to miss my son’s wedding on Saturday. I am still starving. I’m running on food from the food bank. Today I ate ½ can of peas to conserve. I have no more patience and tolerance. I am now going to resort to extreme violence to alleviate my frustration. (Repeat) I am out of patience and I am out of tolerance. I am now going to resort to extreme violence to alleviate my frustration. Thank you for your help. Respondent’s conduct was inappropriate, harassing, abusive, and intimidating. Respondent could certainly have conveyed her frustration about her pay without the need to harass, intimidate, and resort to threats of extreme violence. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of misconduct in office in violation of Florida Administrative Code Rule 6A- 5.056. By her threats to resort to extreme violence, Respondent violated Florida Administrative Code Rule 6A- 10.081(2)(c) by engaging in conduct which created a hostile, intimidating, abusive, offensive, or oppressive environment, and failing to make reasonable effort to assure that each individual is protected from such harassment. Respondent also violated rule 6A-5.056(2)(e) by engaging in conduct which reduced Respondent’s ability or her colleagues’ ability to effectively perform duties. The persuasive and credible evidence adduced at hearing establishes that Respondent is guilty of incompetence in violation of rule 6A-5.056(3). By her threats to resort to extreme violence, Respondent failed to discharge her required duties as a teacher as a result of inefficiency. Respondent was inefficient by failing to perform duties prescribed by law and by failing to communicate appropriately with and relate to colleagues, administrators, or subordinates. The persuasive and credible evidence adduced at hearing establishes that Respondent violated School Board Policy No. 2410. By her threats to School Board employees to resort to extreme violence, Respondent violated School Board Policy No. 2410. Respondent’s threats to employees of FEA and BTU to resort to extreme violence are beyond the scope of the policy. The persuasive and credible evidence adduced at hearing establishes that Respondent violated School Board Policy No. 4008(B)1. and 3. By her threats to resort to extreme violence, Respondent failed to comply with the Principles of Professional Conduct of the Education Profession in Florida and all rules and regulations prescribed by the State Board and the School Board. The persuasive and credible evidence adduced at hearing fails to establish that Respondent violated School Board Policy No. 4008(B)2., which pertains to certain traits to be infused in the “classroom.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order upholding the 15-day suspension of Respondent without pay. DONE AND ENTERED this 24th day of October, 2017, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 24th day of October, 2017.
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.
