The Issue Whether there is just cause to terminate Respondent’s employment with the school district.
Findings Of Fact The Petitioner is the entity responsible for the operation and administration of the Polk County School District. Such duties include all personnel decisions affecting employees of the school district. The Respondent was an employee of the school district and was assigned to teach third grade at Sleepy Hill Elementary School in Lakeland, Florida. Respondent’s employment was pursuant to a professional services contract. In accordance with the negotiated contract for professional educators working within the Polk County School District, Petitioner follows a progressive discipline program. All Board employees are afforded opportunities to improve performance deficiencies before termination of their employment. In this case, Petitioner asserts that the falsification of student grades into the Pinnacle grading system was Respondent’s final action supporting just cause for termination. On March 17, 2014, Respondent received a verbal warning with written confirmation due to ongoing absenteeism and the failure to timely complete paperwork regarding absences from school. On March 31, 2014, Respondent received a written reprimand due to Respondent’s continuing absences and other irregularities in taking leave. Respondent had been an employee of the school district long enough to understand the leave procedures required in order to take absences from school. On January 25, 2015, despite the two prior notifications regarding leave, Respondent was absent without following the proper leave procedures. On February 3, 2015, Respondent’s principal recommended to the superintendent of schools that Respondent be disciplined by suspension without pay. On March 16, 2015, Respondent was suspended without pay for three days. The superintendent cited the grounds for the suspension as Respondent’s continued failure to comply with leave procedures and restrictions. Thereafter, based upon Respondent’s poor classroom performance coupled with observed deficiencies, Respondent was put on a professional development plan that set forth criteria that required Respondent’s improvement. On April 15, 2015, Respondent, her representative, and her principal met to review the Respondent’s performance of her responsibilities. During the discussion, a report from the school district’s Pinnacle grading system was reviewed. The Respondent’s students all received the same grade. When questioned, Respondent assured her principal that she had accurately entered the students’ grades. In fact, Respondent did not accurately enter her students’ grades. In the course of less than a minute on the Pinnacle system, Respondent entered all “4s” for her students on one section of a reading test. The grades entered by Respondent did not match the grades reflected on her grading sheets. Additionally, four of the grades entered on a second section of the weekly test were entered incorrectly. Respondent did not truthfully answer questions regarding the entry of the grades and did not accept responsibility for falsifying the grades entered. Had Respondent simply confessed error in entering the grades and truthfully stated why she hurriedly entered the grades incorrectly, her character would not be called to question. Instead, Respondent wrongly maintained she had accurately entered the grades. Respondent’s honesty was called into question when she did not readily acknowledge her error. Thereafter Respondent’s principal recommended to the district’s superintendent that Respondent’s employment be terminated. By letter dated November 16, 2015, the superintendent advised Respondent that it would be recommended to the Board that her employment be terminated. The teachers’ bargaining agreement pertinent to this case provides for progressive discipline. Prior to termination (step 4), there are three prior levels of discipline: verbal warning; written warning; and suspension. In this case Petitioner complied with the progressive discipline required by the bargaining agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Polk County enter a final order terminating Respondent’s employment with the school district. DONE AND ENTERED this 3rd day of August, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 3rd day of August, 2016. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Donald H. Wilson, Jr., Esquire Boswell and Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830 (eServed) Jacqueline Byrd, Superintendent Polk County School Board 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether there is just cause for Palm Beach County School Board to suspend Deborah Stark for 10 days without pay based upon the allegations made in its Administrative Complaint filed on November 8, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the Palm Beach County Public School System. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Stark was hired by the School Board in 2005. She is employed pursuant to a professional services contract with Petitioner. At all relevant times to this case, Stark was a teacher at Diamond View. She taught second grade. One of Stark's teaching responsibilities was to provide student information to the School Based Team ("SBT") such as conference/staffing notes,1 to assist the SBT in determining how best to support students who were having challenges or difficulties with reading. During Stark's last several school years with the School Board, Stark engaged in a pattern of misconduct. On June 1, 2015, Stark received, by hand delivery, her first written reprimand. She was disciplined for falsifying three memos by inappropriately using the School Board's letterhead and creating misleading and false documents under co-workers' names without permission. One problem area Respondent had was that she failed to keep her classroom organized and neat. Because of the disorganized book area and unkempt cluttered classroom, Respondent's classroom failed to be an environment conducive to learning and impacted the students' morale negatively. On September 30, 2015, Principal Seal, by memorandum, addressed two of Stark's work deficiencies. Seal pointed out to Stark that her classroom management did not correspond with the School Wide Positive Behavior Support Plan and that Stark's 2014-2015 Reading Running Records ("RRR")2 were not accurately and properly administered. Seal instructed Stark to sign up for a classroom management course through eLearning within a week and notify Seal of the enrollment. Seal even specifically suggested a two- day course that started on October 6, 2015, at the Pew Center. Seal also outlined Stark's RRR inaccuracies and deficiencies in the September memo, which included Stark's failure to provide an accurate report on September 25th for a student during a scheduled SBT meeting, improper use of school materials as a benchmark, and writing in the teacher materials with student's information inappropriately. As a result of Stark's RRR shortcomings, Seal directed Stark to sign up for the next RRR training available on either October 13, 14, 23, or 24, 2015, through eLearning and instructed Stark to verify the RRR training enrollment. The memo ended with the following: "Failure to comply with these directives will be considered insubordination and may result [in] disciplinary action to include up to suspension or termination of employment." On November 10, 2015, Seal specifically directed Stark to clean up her classroom and update her students' progress on the class bulletin board. Stark was provided a deadline of on or before November 24, 2015, to correct the performance deficiencies. Stark did not do so. In December 2015, Stark still had student work posted from August and her classroom was not up to date. On December 18, 2015, a pre-disciplinary meeting was held. In that meeting, Stark informed Seal that she went to training, but admitted that she did not provide the required documentation of attendance. Stark's performance with RRR had not improved. By February 2016, Respondent had failed to comply with Seal's directives of November 10, 2015. Stark's classroom was unacceptable and had not been cleaned up, updated, organized as directed. The closet was cluttered from the floor to the ceiling with boxes, papers, and books. Additionally, Stark's student work bulletin board still was not changed and up to date. On February 12, 2016, Seal met with Stark to address the issues and gave Stark a verbal reprimand with written notation. The verbal reprimand with written notation memo stated that Respondent was insubordinate for fail[ing] to comply with "directives given to her in the memorandums dated September 30, 2015, and November 10, 2015." On May 24, 2016, a pre-determination meeting was held with Stark and she acknowledged that she had fallen behind in the RRR and math/reading assessments but planned to catch up by the end of the year. On June 2, 2016, Seal held another disciplinary conference with Stark. Seal provided Stark a written reprimand by memo detailing that Stark exhibited: poor judgement, lack of follow up, inappropriate supervision of students, excessive absence without pay, failure to properly and accurately administer and record Reading Running Records as well as Math and Reading assessments, during the school year 2015/2016 with fidelity and insubordination. Seal also instructed Stark in the memo: Effective immediately, you are directed to provide the appropriate level of supervision to your students, follow your academic schedule, meet deadlines with respect to inputting reading and math date into EDW, accurately complete Running Reading Records, cease from taking unpaid time and follow all School Board Policies and State Statutes. Finally, pursuant to the CTA contract, I am directing you to provide a doctor's note for any absences going forward. This requirement will be in effect until December 22, 2016. Respondent failed to follow the leave directive of the written reprimand of June 2, 2016. Stark's duty day started at 7:50 a.m. On October 14, 2016, Stark notified Diamond View at 8:26 a.m. that she would not report to work because she had a ride to an appointment. On November 29, 2016, Stark notified the school at 7:40 a.m. by stating, "I have a meeting boo," as she took the full day off. On December 16, 2016, she notified the school at 6:24 a.m. that her husband requested a shopping day and family activities for the day. On February 10, 2017, Stark notified the school at 7:38 a.m., "I am going to a friend's house today to help them." On March 2, 2017, she notified the school at 7:14 a.m. that "I am finalizing a college class today." On March 7, 2017, Stark notified the school at 6:18 a.m. that Nationals verses Boston were at the new park and she would not be in to work. On April 5, 2017, Stark notified the school at 7:34 a.m. that she had a meeting and missed half the school day. Stark's absences of September 21, September 23, October 14, November 29, and December 16, 2016, were unauthorized leave and her leave of March 2, March 7, April 5, and February 10, 2017, were days without pay. Stark's excessive absenteeism disrupted the learning environment for her students and caused Respondent to miss out on valuable School Board resources she needed to perform her job duties and correct her work performance deficiencies. By missing work, Stark was neither able to obtain the needed available professional development nor obtain support from the Literacy Staff Developer. Stark's ineptness continued throughout the 2016-2017 school year. Stark failed to provide requested student information needed to assist in creating report cards for several former students, which adversely impacted the school and the students because, among other things, the school was not able to provide the students' new teachers with accurate data for placement. Stark was offered coaching services to improve her work performance through Peer Assistance Review ("PAR"). Stark failed to show up and meet with the trainers assigned to provide her support on January 20, February 1, and March 7, 2017. Stark failed to submit the required SBT documentation for five students timely. Stark's duties included meeting with the parents of each student to communicate the students' academic concerns. Stark did not meet with the parents. Instead, Stark submitted five untimely falsified student records indicating parent meetings that did not take place. She also forged translator Torres-Vega signature like she was present at the meetings, when Torres-Vega had not participated. On or about April 24, 2017, an investigation report was completed detailing Stark's misconduct for the 2016-2017 school year. The investigative summary concluded Stark failed to comply with numerous directives given by the principal and vice principal. Stark failed to complete and submit SBT documentation for five students who could have benefited from additional supportive services. Respondent falsified student records indicating she contacted and conferenced with the parents for each student. She also falsified that a translator had participated in the parent conferences. At the same time, Stark sent last minute notification emails to the principal as to why she would not be reporting to work, failed to notify Seal in a timely manner when she would not be reporting to work, and did not prepare substitute lesson plans. Stark's unexcused absences totaled approximately 40 hours without pay within a five month period and did not adhere to the 24 hour advanced notice requirement of the Collective Bargaining Agreement. Respondent's absences from work also caused her to miss valuable School Board training and support. Ultimate Findings of Fact Stark failed to fulfill the responsibilities of a teacher by not preparing and submitting the documents to the SBT so that the students could qualify for the support and services after multiple follow-ups and reminders by her supervisors. Stark's actions of falsifying the five students' records with Torres-Vega's signature and indicating that she met with the parents when she did not was ethical misconduct, failure to exercise best professional judgment, failure to provide for accurate or timely record keeping, and falsifying records. Stark misused her time and attendance when she had exhausted her paid time, but continued to use leave without pay when her work was not up to date and after she had been reprimanded and warned regarding absences by Seal. Stark's explanation of her absences failed to fall in the category for extenuating circumstances and her absences disrupted the learning environment. Stark was insubordinate and also failed to follow procedures, policies, and directives of the Diamond View principal and vice principal. Stark never cleaned up her classroom and failed to protect the learning environment. She also did not update her RRRs as instructed by Seal. On February 1, 2017, Vice Principal Diaz had also instructed Stark to always follow and adhere to an academic schedule with the students in order to provide structured learning. Instead, Stark continued to constantly allow the students to walk around the classroom, draw and eat snacks, without an academic schedule. By letter dated September 19, 2017, Respondent was notified that the School Board was recommending she receive a 10 day suspension without pay because of her misconduct. On or about October 4, 2017, the School Board took action by voting to suspend Respondent for 10 days without pay. Petitioner ultimately filed charges against Stark by Administrative Complaint dated November 8, 2018, that alleged Stark violated the following School Board policies: Failure to Fulfil the Responsibilities of a Teacher pursuant to School Board Policy 1.013(4), Responsibilities of School District Personnel and Staff; School Board Policy 2.34, Records and Reports; Collective Bargaining Agreement with CTA, Article II, Section U, Lesson Plans Failure to Protect the Learning Environment pursuant to School Board Policy 0.01(2)(3), Commitment to the Student, Principle I-(formally 0.01(2)(c); 6A- 10.081(2)(a)(1), F.A.C., Principles of Professional Conduct for the Education Profession Misuse of Time/Attendance pursuant to School Board Policies 3.80(2)(c), Leave of Absence; Collective Bargaining Agreement with CTA, Article V, Leaves, Section B Ethical Misconduct pursuant to School Board Policy 3.02(4)(b), (4)(d), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 3.02(5)(c)(iii), Code of Ethics; 6A-10.081(1)(c) and (2)(c)(1), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Failure to Exercise Best Professional Judgment pursuant to School Board Policy 3.02(4)(a), Code of Ethics; 6A-10-081(1)(b), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Insubordination: Failure to Follow Policy, Rules, Directive, or Statute pursuant to School Board Policy 3.10(6), Conditions of Employment with the District; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: Finding Deborah Stark in violation of all six violations in the Administrative Complaint; and Upholding Deborah Stark's 10-day suspension without pay for just cause. DONE AND ENTERED this 25th day of July, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 25th day of July, 2018.
The Issue The issue for determination is whether Respondent's professional service contract should be re-newed.
Findings Of Fact At all times material hereto, the Dade County School Board (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, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Helen F. Ruby (Respondent) was employed with the Petitioner as a teacher pursuant to a professional service contract (PSC). Respondent has been employed with Petitioner as a PSC teacher for approximately 15 years. Respondent is a member of the United Teachers of Dade (UTD). As a member of UTD, Respondent is bound by all the provisions of the labor contract between Petitioner and UTD. The UTD contract requires the utilization of the Teacher Assessment and Development System (TADS) to evaluate the performance of teachers. All teachers employed by the Petitioner are evaluated pursuant to the TADS, which is an objective instrument used to observe minimal teaching behaviors. The TADS instrument evaluates teacher classroom performance in six categories which are preparation and planning; knowledge of subject matter; classroom management; techniques of instruction; teacher-student relationships; and assessment techniques. A seventh category, referred to as professional responsibility, reflects the duties and responsibilities of a teacher in complying with the Petitioner's rules, contractual provisions, statutory regulations, site directives, and all policies and procedures relating to record-keeping and attendance. This system of evaluation records deficiencies observed during the observation period and provides the prescription for performance improvement. At all times material hereto, the document used to evaluate Respondent's performance was the TADS document, more specifically, TADS, Classroom Assessment Instrument (CAI). The TADS CAI contained the six categories, not the seventh, in evaluating Respondent's performance. 1995-96 School Year During the 1995-96 school year, Respondent was assigned to John F. Kennedy Middle School (JFK) to teach Language Arts at the seventh grade level. On November 13, 1995, Respondent was formally observed by JFK's Assistant Principal. Respondent was found unacceptable in classroom management. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management. The prescription, which includes the prescriptive activities and a date certain for completion or submission of the prescriptive activities, is recorded on the TADS Record of Observed Deficiencies/Prescription for Performance Improvement (ROD). After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities on the ROD. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document; but Respondent did not provide a response on the TADS document to the noted deficiencies. On December 15, 1995, a mid-year Conference-for-the- Record (CFR) was held. Present at the mid-year CFR were the Principal, Assistant Principal, Respondent, and a UTD representative. During the mid-year CFR, Respondent's prescription status was addressed, due to her unsatisfactory performance in classroom management, and her future employment status with Petitioner. Respondent was provided an opportunity to address the deficiencies and concerns noted in the mid-year CFR; however, Respondent did not provide a response. A written summary of the mid-year CFR, dated January 8, 1996, was prepared by the Principal. Respondent received a copy of the summary. On March 11, 1996, Respondent was formally observed by the Principal. Respondent was found to be unacceptable in techniques of instruction and assessment techniques. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management, which were recorded on the ROD. After the formal observation, the Principal held a post-observation conference with Respondent at which the Principal discussed the deficiencies and the prescriptive activities. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. At times during the post-observation conference, Respondent was argumentative and resistant. On March 21, 1996, a CFR was held. Present at the CFR were the Principal, an Assistant Principal, Respondent, and two UTD representatives. During the CFR, Respondent's unacceptable performance in the classroom, resulting from the unacceptable observations of November 13, 1995, and March 11, 1996, was discussed. Respondent was notified that a second unacceptable consecutive summative would result in an external review and that a recommendation to not renew her professional service contract may be made. A written summary of the CFR, dated March 22, 1996, was prepared by the Principal. A copy of the CFR summary was provided to Respondent. The evidence is insufficient to conclude that a summative observation form was provided to Respondent or Respondent’s UTD representatives. By letter dated March 22, 1996, the Petitioner’s Superintendent of Schools notified Respondent, among other things, that she was being charged with unsatisfactory performance in classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Further, Respondent was notified that, if her performance deficiencies were not corrected during the 1996-97 school year, her employment with the Petitioner may be terminated; and that the assessment of her performance would continue throughout the remainder of the school year. By letter dated March 28, 1996, the Petitioner’s Associate Superintendent of Schools notified Respondent, among other things, that she had not been recommended for renewal of her PSC and that the Petitioner had acted on the recommendation to not renew her PSC. Further, Respondent was notified, among other things, that her performance would continue to be assessed throughout the 1995-96 and 1996-97 contract school years; and that, unless her performance deficiencies were remediated, her employment with the Petitioner would terminate at the close of the 1996-97 contract school year, with her last day of employment being June 14, 1997. On April 29, 1996, Respondent was formally observed by JFK's Assistant Principal. Respondent was found to be unacceptable in classroom management and techniques of instruction. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction, which were recorded on the ROD. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. As a result of Respondent receiving three unacceptable observations during the 1995-96 school year, JFK’s Principal requested an external review of Respondent’s classroom performance. An external review is a formal observation which requires an on-site administrator and an off-site region or district office administrator to be observers, a two-on-one observation. The observers are both in the teacher’s classroom at the same time; they observe the same lesson plan; and they rate the TADS CAI items independently, using their own judgment. After the two observers independently assess the teacher’s classroom performance, they meet and collaboratively prepare a prescriptive record of observed deficiencies which includes their observations substantiating the deficiencies. The prescription is recorded on the ROD. Written notice must be provided to the teacher that an external review will be conducted. The CFR summary dated March 22, 1996, provided Respondent with notice that an external review would be conducted if a condition precedent occurred, which was the occurrence of a second unacceptable consecutive summative. There is no dispute that the formal observations conducted on November 13, 1995, and March 11, 1996, comprise the first two consecutive TADS CAI observations; and that the formal observations conducted on March 11, 1996, and April 29, 1996, comprise the second two consecutive TADS CAI observations. There is disagreement as to whether the observations comprise the first unacceptable consecutive summative and the second unacceptable consecutive summative, respectively; however, a finding is so made and, therefore, the condition precedent was satisfied. Moreover, a finding is made that the mid-year CFR summary dated March 22, 1996, provided Respondent notice of the external review. On May 30, 1996, an external review of Respondent’s classroom performance was conducted by JFK's Assistant Principal (the on-site administrator) and by the Instructional Supervisor of the Division of Language Arts and Reading (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Each observer rated Respondent independently on the TADS CAI. The two observers did not discuss their ratings of Respondent prior to completing the TADS CAI rating. After performing their independent ratings, the two observers discussed Respondent’s performance. Neither observer changed their ratings during or after the discussion. As a result of Respondent receiving an unacceptable external review, the two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. After an external review, the on-site observer has the responsibility of conducting the post-observation conference and preparing and issuing the prescription. In accordance therewith, the Assistant Principal held a post-observation conference with Respondent and discussed the noted-deficiencies and the prescriptive activities. On June 14, 1996, Respondent was placed on prescription in the category of professional responsibility, the seventh category of TADS, by the Principal. Respondent was given prescriptive activities to assist her to overcome her deficiencies in professional responsibility, which were recorded on the ROD. The Principal held a conference with Respondent to discuss the prescription. Respondent’s annual evaluation was conducted on June 14, 1996. During the 1995-96 school year, the Principal and her staff provided Respondent with assistance to overcome the noted deficiencies. However, Respondent’s classroom performance remained unacceptable. Respondent’s overall performance was found unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, teacher-student relationships, assessment techniques, and professional responsibility. Respondent had failed to remediate these unacceptable categories. Respondent received an overall unacceptable annual evaluation for the 1995-96 school year. 1996-97 School Year JFK had a new principal for the 1996-97 school year. The Principal was informed as to Respondent’s prescription status. The Principal met with Respondent, reviewed the prescription with her, and offered to assist Respondent with the prescriptive activities. Respondent indicated to the Principal that she needed no assistance. By memorandum dated September 24, 1996, the Principal notified Respondent that, pursuant to the prescription, Respondent had failed to submit the prescriptive activities which were due on September 20, 1996, and that, therefore, she was in noncompliance with the prescription. Respondent was also notified that, if she failed to submit the prescriptive activities by September 25, 1996, the professional responsibility (category seven) prescription would be extended for noncompliance. Finally, the Principal provided Respondent duplicates of the June 14, 1996, prescription and TADS documents. Respondent failed to complete the prescriptive activities by September 25, 1996. On October 3, 1996, a CFR was held. Present at the CFR were the Principal, the Assistant Principal, Respondent, and the UTD steward. During the CFR, Respondent’s prescriptive status, noncompliance with the prescription and administrative directives, and future employment status with Petitioner were discussed. The June 14, 1996, prescription was extended to November 4, 1996, and Respondent was advised that her failure to complete the prescriptive activities by the prescribed deadline would be considered insubordination. A written summary of the CFR was prepared by the Principal. Respondent was provided a copy of the summary. On October 8, 1996, approximately one week after the CFR, Respondent was formally observed by the Principal. Respondent was found to be unacceptable in techniques of instruction and assessment techniques. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in techniques of instruction and assessment techniques, which were recorded on the ROD. After the formal observation, the Principal held a post-observation conference with Respondent at which the Principal discussed the deficiencies and the prescriptive activities. Respondent was notified that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. On October 14, 1996, a memorandum from the Principal was submitted to Respondent which notified Respondent that she had failed to submit all prescriptive activities which were due on October 4, 1996, in accordance with the prescription dated June 6, 1996. Respondent was also notified that the required prescriptive activities must be submitted by October 15, 1996; and that, if they were not, the prescription of June 6, 1996, would be extended due to noncompliance. On December 16, 1996, a mid-year CFR was held. Present at the mid-year CFR were the Principal, the Assistant Principal, Respondent, and the UTD steward. During the mid-year CFR, Respondent’s noncompliance with school site directives, noncompliance with Petitioner’s rules, prescriptive status, and future employment status with Petitioner were discussed. Additionally, the assistance provided Respondent to assist her in improving her classroom performance was reviewed. During the mid-year CFR, Respondent was advised that she was in her second year of unacceptable performance status and that she had failed to remediate her noted deficiencies. She was also advised that, if she failed to remediate the noted- deficiencies by the end of the 1996-97 school year, a recommendation would be made for the non-renewal of her PSC, which would be reported to the Florida Department of Education. Additionally, during the mid-year CFR, Respondent was advised that to remediate the noted deficiencies she must receive two consecutive acceptable summative decisions, which would require three formal observations. Respondent was further advised that, if she received two consecutive unacceptable summatives or four formal observations with no pattern of two consecutive acceptable or unacceptable summatives, an external review would be conducted. A written summary of the mid-year CFR was prepared by the Principal. Respondent received a copy of the summary. On February 6, 1997, Respondent was formally observed by the Assistant Principal. Respondent was found unacceptable in classroom management and techniques of instruction. As a result, Respondent was placed on prescription and prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction, which were recorded on the ROD. Respondent was required to complete the prescriptive activities by February 26, 1997. After the formal observation, the Assistant Principal conducted a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. Respondent was notified that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. Respondent failed to complete the prescriptive activities by February 26, 1997. By memorandum dated March 4, 1997, the Assistant Principal notified Respondent, among other things, that she was in noncompliance with the prescription because of her failure to complete the prescriptive activities by February 26, 1997; and that she had until March 5, 1997, to submit the prescriptive activities. On February 24, 1996, a CFR was held. Present at the CFR were the Principal, the Assistant Principal, Respondent, and a UTD steward. During the CFR, among other things, Respondent’s prescriptive status, unacceptable classroom performance, and noncompliance with school site directives were discussed. Respondent was advised that she had not remediated her deficiencies and was notified that, therefore, an external review was requested. Respondent was also notified that, if she did not remediate the noted-deficiencies, a recommendation would be made to terminate her employment with the Petitioner and not renew her PSC. A written request for an external review was made by the Principal. Respondent received a copy of the request. A written summary of the CFR was prepared by the Principal. A copy of the CFR summary was provided to Respondent, who was informed that she could provide a written response to the summary. Although not required for PSC teachers, an interim evaluation is used to inform PSC teachers on prescription of the latest summative decision. Also, the interim evaluation notifies the PSC teacher that he/she may be in jeopardy of losing their PSC at the end of the school year. On February 27, 1997, Respondent received an interim evaluation. She was found to be unacceptable in classroom management, techniques of instruction, and assessment techniques. The overall unacceptable interim evaluation was based on the compilation of the unacceptable formal observations of October 8, 1996, and February 6, 1997. On March 7, 1977, Respondent was formally observed by JFK's Assistant Principal. Respondent was found to be unacceptable in preparation and planning, techniques of instruction, and assessment techniques. As a result, Respondent was placed on prescription and prescribed activities to help her overcome her deficiencies in preparation and planning, techniques of instruction, and assessment techniques, which were recorded on the ROD. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. The Assistant Principal offered to provide any assistance that Respondent requested to assist her to improve her performance. The date for completion of the prescriptive activities was March 27, 1997. Respondent failed to timely complete the prescription, submitting the prescriptive activities on April 9, 1997. By letter dated March 10, 1997, the Petitioner’s Superintendent of Schools notified Respondent, among other things, that the deficiencies noted in Respondent’s performance in the 1995-96 school year had not been corrected, that he would be recommending to the Petitioner that Respondent’s PSC not be re-issued, and that the Petitioner would act on his recommendation on March 19, 1997. Further, Respondent was notified that her performance would continue to be assessed for the remainder of her contract. On March 19, 1997, the Petitioner acted on the Superintendent’s recommendation. The Petitioner decided not to renew Respondent’s PSC and not to reappoint Respondent to a teaching position. On April 16, 1997, an external review of Respondent’s classroom performance was conducted by JFK's Principal (the on- site administrator) and by the Instructional Supervisor of the Division of Language Arts and Reading (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in classroom management, techniques of instruction, and teacher-student relationships. Each observer rated Respondent independently on the TADS CAI. The two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. The two observers collaboratively prepared the prescriptive record of observed deficiencies and recorded the prescription on the ROD. After the external review, the Principal held a post- observation conference with Respondent. The Principal discussed the noted deficiencies and the prescriptive activities. Subsequent to the post-observation conference, the Principal assisted and assigned school staff to assist Respondent to improve her classroom performance and with her prescriptive activities. The date for completion of the prescriptive activities was May 9, 1997. Respondent completed the prescriptive activities on May 8 and 9, 1997. On May 29, 1997, an external review of Respondent's classroom performance was conducted by JFK's Assistant Principal (the on-site administrator) and by the Petitioner's Regional Director (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in classroom management, techniques of instruction, and teacher-student relationships. Each observer rated Respondent independently on the TADS CAI. The two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. The two observers collaboratively prepared the prescriptive record of observed deficiencies and recorded the prescription on the ROD. After the external review, the Assistant Principal held a post-observation conference with Respondent. The Assistant Principal discussed the noted deficiencies and the prescriptive activities. Subsequent to the post-observation conference, the Principal again assisted and assigned school staff to assist Respondent to improve her classroom performance and her prescriptive activities. The date for completion of the prescriptive activities was June 12, 1997. Respondent failed to timely complete the prescriptive activities, submitting them on June 13, 1997. During the 1996-97 school year, Respondent failed to remediate the noted deficiencies. Respondent’s annual evaluation was conducted on June 11, 1997. Respondent’s overall performance was found to be unacceptable in the categories of classroom management, techniques of instruction, and teacher-student relationships. Respondent had failed to remediate these unacceptable categories. Respondent received an overall unacceptable annual evaluation for the 1996-97 school year. By letter dated July 15, 1997, the Petitioner's Office of Professional Standards notified Respondent, among other things, that her performance assessment record for the 1995-96 and 1996-97 school years had been transmitted to the Florida Department of Education. Respondent was further informed that her performance assessment record was transferred due to Respondent receiving two consecutive unsatisfactory annual evaluations and that she was being provided written notice that her employment with Petitioner was being terminated, not being renewed, or that the Petitioner intended to terminate, or not renew, her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a final order: Not renewing the professional service contract of Helen F. Ruby. Dismissing Helen F. Ruby from employment with the School Board of Dade County. Denying backpay to Helen F. Ruby. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998. COPIES FURNISHED: Twila Hargrove Payne, Esquire School Board of Dade County 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest 3rd Avenue, Suite 1 Miami, Florida 33129 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Mr. Roger C. Cuevas, Superintendent School Board of Dade County 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132-1308
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Respondent has been employed by the School Board since November 28, 2006. Respondent is a teacher's aide in a voluntary pre-kindergarten (VPK) class at Samoset Elementary School. Respondent's job responsibility, as the VPK teacher's aide, is to assist the VPK teacher of record for the classroom to which she was assigned. Respondent understood that was her job--that she was required to work at the teacher's direction and that the teacher had the authority to issue directives to her aide. The school day started at 8:00 a.m., but the instructional part of the school day did not start until 8:30 a.m. Between 8:00 and 8:30, each morning, the VPK teacher's aide's job was to set up the classroom, greet the students, and supervise their breakfast, while the teacher used the time for planning the classroom activities of the day and beyond. Ms. Slagle was assigned as the teacher of record for the VPK classroom to which Respondent was the assigned teacher's aide, beginning in the fall of 2009.1/ At first, Ms. Slagle would discuss with Respondent what she needed Respondent to do in the classroom, but after a short period of time, some of the tasks Ms. Slagle had assigned to Respondent were not always getting done. In addition, Ms. Slagle had problems with Respondent missing whole work days or arriving late. To address the problem with Respondent not always completing all of her assigned tasks, Ms. Slagle made a list of regular tasks that Respondent was to complete daily and hung the list up in the classroom to assist Respondent to remember everything that was supposed to be done daily. Examples of these tasks included taking the student chairs down from the tables in the morning, taking equipment such as bicycles out of the locked storage shed and then returning the bikes after use and securing the shed, cleaning up after lunch in the classroom and taking the trash out, wiping/disinfecting the tables at the day's end and putting the chairs back up on the tables, and similar tasks for room set-up in the morning, facilitating activities during the day, and closing down the room at day's end. Ms. Slagle also addressed her concerns about Respondent's attendance lapses with her. For example, she spoke to Respondent about her frequent late returns from lunch. Respondent sought to excuse her tardiness by saying that there was nothing for her to do. In response, Ms. Slagle drew up a second list of additional tasks, beyond the daily assignments, that Respondent could turn to if she had finished all of the regular tasks and did not have anything else to do. Respondent apparently took offense to these lists and reacted to them with some hostility, telling Ms. Slagle that she did not think they were necessary. Respondent claims that she did everything she was supposed to do. The more credible evidence was that Respondent did not regularly complete all of her assigned tasks and, generally, had a bad attitude about being given assignments and being told what to do. Apparently at the core of Respondent's hostility was the misimpression that she and Ms. Slagle were "co-workers" with the same job descriptions and same qualifications. This was shown not to be true. Respondent's official job description was "VPK Teacher's Aide." Ms. Slagle's official job description was "Child Development Associate (CDA)/Teacher's Assistant." Though these titles may sound similar, the CDA position held by Ms. Slagle required a certification equivalent as a qualification to be the teacher of record for VPK classes. Ms. Slagle met this qualification and was, in fact, the assigned teacher of record for this classroom. Respondent did not hold the same qualification; she was not a CDA, nor was she the teacher of record for the VPK classroom; instead, as she acknowledged, she was the aide to the teacher of record. The positions were not equal. Respondent and Ms. Slagle were not co-workers, if that description implies equivalent status. When Ms. Slagle first developed the assignment lists for Respondent, she posted them as reminders. However, Respondent did not take the hint and regularly failed to complete all of the required tasks. At that point, Ms. Slagle instructed Respondent to check off the daily tasks, and Ms. Slagle posted a new copy of the list daily so that Respondent could check off tasks as she did them. Respondent refused to comply. She never checked a single task off of any list. Ms. Slagle started keeping the lists with her own notes indicating which of the tasks had been left undone. On several occasions, Respondent would add her own comments to Ms. Slagle's annotated lists. For example, on one list dated in early December 2010, where Ms. Slagle indicated that Respondent failed to take the student chairs down in the morning, Respondent added the following note: "But you get to work every day at 7:30 and can't take down the chairs." Respondent acknowledged that she thought Ms. Slagle should be doing some of the tasks she assigned to Respondent, but Respondent admitted that comments such as this were sarcastic and unprofessional. On several occasions, Respondent ripped the checklist off of the wall where it was posted and threw it in the trash. Once again, Respondent acknowledged that she probably should not have done that, but that she was offended by the list and believed that Ms. Slagle posted it on the wall where everyone could see to humiliate Respondent. There were no adults regularly in the classroom besides Ms. Slagle and Respondent. The four-year-old VPK students were not able to read. Although Respondent was offended by the checklists, all other witnesses, including two other teacher's aides and a teacher who taught the other VPK class, uniformly testified that the use of checklists was not unusual and that they had used similar lists before, at least until all assigned tasks were done every day. The aides testified that they were not offended by the lists, but, rather, appreciated the reminders that the lists provided. None of the specific tasks on the lists used by Ms. Slagle was unreasonable or unexpected assignments for a VPK teacher's aide. Instead, the consistent, credible testimony was that Respondent's assigned tasks were reasonable and appropriate, that Ms. Slagle's checklists were reasonable and appropriate tools routinely used by VPK teachers, and that the posting of such lists was the norm for elementary school where the classroom walls were always filled with all kinds of information, pictures, lists, and graphics. When Respondent's attendance problems were not solved early on in the 2009-2010 school year by Ms. Slagle's raising the problems directly with Respondent, the principal of Samoset Elementary School, Mr. Boyes, got involved. Mr. Boyes spoke with Respondent more than once about her attendance in the short period between the start of that school year on August 19, 2009, and the beginning of October 2009. When Respondent continued to be tardy and continued to be out for whole school days, Mr. Boyes took the next step of issuing a written reprimand to Respondent on October 7, 2009. At a meeting attended by Respondent and her union representative, Mr. Boyes read the written reprimand letter to Respondent, which Respondent signed to acknowledge she received it. In pertinent part, the written reprimand stated: The purpose of this letter is to reprimand you for your actions from August 19, 2009 through October 1, 2009. During this time you have been late to work at least three times and have been absent 15 days, one of which on August 19, 2009, whereby you did not call the automated absentee system (Smart Find) or contact anyone at the school site to report your absence. You abandoned your position without leave. These behaviors constitute willful neglect of duty and misconduct in office . . . [and] excessive absenteeism . . . It is expected that there will be no recurrence of the above behaviors on your part that necessitated this reprimand. In the event there is a recurrence, you will subject yourself to further disciplinary measures, up to and including termination of your employment. To help ensure there were no recurrences, Mr. Boyes issued a written directive along with the written reprimand, reiterating Respondent's duty hours and the requirement for requesting and receiving prior appropriate leave to be excused from reporting to work each day on time and remaining at work for the entirety of her work shift. As an additional check on Respondent's compliance, the written directive stated: "I am directing you to sign in each day at the front office as you did this morning." Rather than ensuring compliance to avoid recurrences, the sign-in directive became another requirement that Respondent failed to meet. Respondent readily admits that her attendance did not improve at all after the written reprimand. Instead, the records show that Respondent's attendance worsened. For the entire school year of 2009-2010, Respondent was absent for the whole school day 20 percent of the time; in 2010-2011 through January 24, 2011 (the period of time documented by the investigation leading up to the recommended termination), Respondent was absent for the whole school day 25 percent of the time. Respondent admits she only occasionally followed Mr. Boyes' written directive to sign in every day in the front office. Indeed, the records show only seven times between October 7, 2009, and January 24, 2011, when Respondent signed in as she was required to do, and she was late two of those seven times. Respondent's testimony that she simply "forgot" to sign in on the vast majority of days is not credible. Mr. Boyes testified that he gave Respondent verbal reminders on several occasions that he expected her to be signing in. On one such occasion, Respondent responded to the reminder by asking Mr. Boyes whether anyone else was required to sign in every day. The reasonable inference from Respondent asking this question is that, just as with Ms. Slagle's checklist directive, Respondent took offense with Mr. Boyes' sign-in directive and knowingly chose to refuse to comply with her superior's directive. Respondent was also required to put a "slash" mark on an attendance roster known as the "slash sheet," which was used to account for daily attendance for payroll purposes. Respondent did not forget to comply with this requirement. The "slash sheet" book was kept right near the front office sign-in/sign-out book, no more than 25 feet away. Respondent failed to explain how she managed to remember to fill out the slash sheet so she would get paid, while "forgetting" to sign in as Mr. Boyes required in the written directive. The more credible evidence shows that Respondent was well aware of the requirements, but made poor choices in repeatedly refusing to comply with the reasonable directives of her superiors. Respondent's defiance and poor attendance had a significant adverse impact on not just the VPK classroom, but the elementary school as a whole. VPK classes are unique in that they are subject to specific regulatory requirements and frequent inspections by the Early Learning Coalition, which monitors VPK compliance. For example, Ms. Slagle testified that the reason Respondent's assigned tasks included emptying the trash after lunch is because the Early Learning Coalition inspectors will cite the school if the trash is overflowing and that the students make a big mess at lunch because they eat in the classroom, so the trash almost always has to be emptied after lunch. Respondent was offended by this requirement, saying she was not a custodian and that another aide had told her that taking out the trash was the custodian's job. While that may be true for end-of-day cleaning, Ms. Slagle explained that her aide had to take the trash out after lunch, because they would not make it to the end of the day without the trash overflowing. The bottom line is that Respondent should not have met every assigned task with defiance and refusals, but she did. In this instance, her refusal put the VPK classroom at risk of being written up if they were inspected at the wrong time. Ms. Slagle testified that another result of Respondent's failure to perform the morning set-up tasks, such as taking the chairs down from the tables, was that Ms. Slagle had to spend her time doing the tasks assigned to Respondent, instead of using the time for planning. Sometimes Respondent's failure to perform the morning set-up tasks was because she was there, but not doing what she was supposed to; other times, it was because she was tardy. Regardless of the reason, the VPK class suffered because the teacher's aide was not doing her job. Ms. Slagle's mornings were frequently disrupted because Respondent would not arrive on time and would not contact anyone to explain her absence, leaving Ms. Slagle and the front office guessing as to whether Respondent was just running late or whether she was going to be out the whole day. Whether for all or part of the day, Respondent's absence from the VPK classroom during school hours was particularly disruptive because of the unique VPK regulatory requirements. VPK classes are required to have one adult present for every ten students, and Ms. Slagle's class had 18 students. As such, every time Respondent was not present, Ms. Slagle had to solve the mystery as to whether Respondent was just running a little (or a lot) late, or whether Respondent would be out the whole day; if the latter, then Ms. Slagle and others in the school system had to scramble to line up a substitute, which often was not possible at the last minute. As a result, the no-win choice caused by Respondent's failure to notify anyone was for Ms. Slagle's class to be out of compliance for part or all of a school day or for the VPK class to pull in someone else in the elementary school, who may or may not be used to working with VPK students, just to meet the adult-to- student ratio requirement. And, of course, when someone was pulled in from another position in the elementary school, a hole was left in the position from which they were taken. One such "pinch hitter" who frequently was called in to cover the missing adult position in Ms. Slagle's VPK class when Respondent was absent was another teacher's aide who worked in the Educating Students of Other Languages (ESOL) program. The ESOL program is for students whose primary language spoken at home is not English. These students required the consistent efforts of someone working with them very intensively to attempt to keep the students on par with the instructional programming for their levels. The ESOL teacher's aide testified with great credibility that her work with the ESOL students suffered every time she had to drop everything to go cover for Respondent, and this occurred frequently. Respondent's defiance of Ms. Slagle's authority in the VPK classroom plainly had an adverse impact on the classroom environment there. Both Respondent and Ms. Slagle attested to the increasingly tense atmosphere in the classroom, not at all conducive to warming up these youngsters for early learning activities. Either Respondent was present, with her strong feelings of resentment and defiance, or else Respondent was missing, and there was a hole to be filled by someone appropriate, someone inappropriate, or no one at all--either way, the VPK students were at the losing end of this bargain. Respondent acknowledged that her absences for whole and part days were many, but asserted that they were all excused and that she did not intentionally refuse to go to work. Instead, she explained that she had six children, including triplets born during the 2008-2009 school year. During that school year, Respondent was granted 60 days of leave under the Family Medical Leave Act (FMLA), followed by an additional 40 days for child care leave. Petitioner excluded these 100 days of FMLA and child care leave (more than half of the school year) from consideration in the "excessive absenteeism" charge. Instead, Petitioner only considered Respondent's absences over and above the 100 days of leave. Respondent was absent an additional 31.4 days, or 17 percent of the school year in the 2008-2009 school year. As previously noted, Respondent's attendance track record progressively worsened in the 2009-2010 and 2010-2011 school years. And as made clear in the written reprimand in October 2009, Respondent's absences were not always excused, as required. Nonetheless, even if Respondent's absences were always excused or always were for legitimate reasons, at some point the focus must shift away from the legitimacy of Respondent's reasons. Regardless of reasons, at some point the absences become excessive and intolerable because of the adverse impact they have on the school system. Respondent also claimed that other instructional personnel at Samoset Elementary had similar problems with attendance, but were not terminated. Respondent failed to prove that any other person had an attendance record as bad as hers or that any other person had an attendance record that got worse instead of better after receiving a written reprimand. More to the point, Respondent did not demonstrate that any other person was similarly situated with a distinctive combination of excessive absenteeism and continuing refusal to comply with the reasonable directives of superiors.2/ In December 2010, Petitioner's Office of Professional Standards ("OPS") initiated an investigation into allegations that Respondent has been grossly insubordinate and excessively absent. The resulting report and documentation was presented to a committee, which unanimously recommended to the Superintendent that action be initiated to terminate Respondent's employment. The Superintendent concurred in the recommendation, and the Administrative Complaint at issue in this case was prepared and served. The School Board generally adheres to the practice of progressive discipline, although whether each step in the progression of discipline will occur in a given case will depend on the nature of the violations and the circumstances of the case. The possible steps in the progression of disciplinary actions are verbal reprimand, written reprimand, suspension with or without pay, and then termination. At one point during the investigation, Respondent's written reprimand was overlooked and, therefore, a draft of a written reprimand was prepared. The October 7, 2009, written reprimand, with written directive, was then discovered and taken into account. As a result, the School Board determined that the appropriate action to be taken was termination. As Mr. Boyes explained, suspension was considered inappropriate as a next step in this particular case, in that one of the charges was excessive absenteeism, and suspension would be tantamount to a reward by giving Respondent more time off as a consequence of taking too much time off. Petitioner's decision to skip the suspension step in the progression of disciplinary action was reasonable under the circumstances of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Dareki Daniels-Youmans. DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2011.
The Issue The issue for determination is whether Respondent committed the allegations set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Respondent began her teaching career as a substitute teacher in 1984 and has been an educator ever since. She holds a teaching certificate, issued by the State of Florida, Department of Education, and is certified to teach varying exceptionalities (VE), emotionally handicapped (EH), English speakers of other languages (ESOL), business, business education, mathematics, and middle school grades. Respondent was employed with Petitioner as a classroom teacher since the 1993-94 school year. For the 1993-94 and 1994-95 school years, Respondent's annual evaluations were satisfactory, with no areas of concern being listed. For the 1996-97 school year, Respondent's annual evaluation was satisfactory, with one area of concern being listed. The area of concern was "Adheres to and Enforces School Policies." Petitioner did not renew Respondent's contract at the end of the school year. Prior to the non-renewal of her contract at the end of the 1996-97 school year, no complaints were made and no issues were raised regarding Respondent's performance in the classroom. After her contract was not renewed, Respondent was prepared to file an unfair labor practice charge against Petitioner. Among other things, Respondent considered herself to be entitled, as a matter of law, to a professional service contract, because she had been employed as an annual contract teacher for more than three years. However, in lieu of litigation, on October 10, 1997, Respondent and Petitioner entered into a Settlement Agreement, enabling her to return to work. The Settlement Agreement provided in pertinent part: Ms. Windecker [Respondent] will be placed on a fourth year of probationary service for FY98 and will be issued an annual contract in accordance with Fla. Stat. Section 231.36(3)(c). Ms. Windecker's reinstatement will be effective . . . upon her return to work on the first Monday following the execution of this agreement. . . . * * * In the event, Ms. Windecker's performance for the FY98 school year is satisfactory she will be recommended for a Professional Services Contract. Satisfactory performance will be determined in compliance with the standards set forth in Florida Statutes Section 231.29, the Collective Bargaining Agreement between the Palm Beach County Classroom Teachers Association and the Palm Beach County School District, and the policies and directives of the Palm Beach County School Board. Ms. Windecker understands that her acceptance of the annual contract in 1 above is not a guarantee of continued employment in her position with the School District beyond the FY98 school year. The District understands that Ms. Windecker's satisfactory performance during the 1997-98 school year will require that she be recommended for and granted a professional services contract. In the event Ms. Windecker's performance for FY98 is determined by the District to be unsatisfactory, she will be entitled to a hearing pursuant to Fla. Stat. Section 231.36(6)(a) before the Division of Administrative Hearings. As a result of the Settlement Agreement, Respondent returned to work. Petitioner administratively placed Respondent at Indian Pines Elementary School (Indian Pines), effective October 13, 1997. At time of her placement, Indian Pines had a vacancy in VE and EH. Petitioner assigned Respondent to the VE position. Petitioner notified the principal of Indian Pines, Kenneth Meltzer, that Respondent was being placed at his school in the VE position. Principal Meltzer met Respondent for the first time on October 13, 1997. Principal Meltzer was not aware of the Settlement Agreement until approximately ten days after Respondent came to Indian Pines. When Respondent reported to Indian Pines on October 13, 1997, Principal Meltzer met with her and discussed, among other things, the VE class situation and the two individuals to contact should she need anything. The two individuals were Elizabeth Cardozo, assistant principal, and Jay Riegelhaupt, exceptional student education (ESE) coordinator and speech language pathologist. A pre-observation planning guide was usually provided to teachers at Indian Pines. Respondent did not receive a pre- observation planning guide. The evidence presented fails to show that the failure to receive the pre-observation planning guide was detrimental to Respondent. Respondent was required to turn-in her plan book to the administration at Indian Pines. Her plan book was approved by the administration at Indian Pines. Principal Meltzer performed a formal observation of Respondent on December 4, 1997. Prior to the observation, Principal Meltzer had received several complaints from the parents of students in Respondent's VE class regarding Respondent. When there are complaints from parents regarding a teacher, Principal Meltzer's usual procedure is to request the parents to place their complaints in writing and, after receiving the written complaints, to meet with the parents and the teacher to address the specific concerns. Principal Meltzer used this same procedure regarding the parents' complaints against Respondent. Some of the parents' complaints were based upon an allegation of battery of students lodged against Respondent. Principal Meltzer did not provide Respondent with any specific document to assist her in dealing with parents' complaints which may arise. Respondent met with each of the parents and their problems or complaints were resolved. During the investigation of the allegation of battery, Principal Meltzer met with Respondent and the parents of the alleged victim of the alleged battery. The meeting ended with the mother of the alleged victim apologizing to Respondent. In addition, prior to the observation of December 4, 1997, members of the crisis response team (CRT) complained that Respondent was making frequent, inappropriate CRT calls. These complaints were brought to the attention of Principal Meltzer. During the formal observation of Respondent on December 4, 1997, Principal Meltzer used the Florida Performance Measurement System (FPMS) Screening/Summative Observation Instrument. FPMS is the system adopted by Florida's Department of Education for measuring the performance of teachers, using domains and concepts for each domain. Principal Meltzer did not review the VE students' individual education plans (IEPs) prior to the observation. Principal Meltzer's observation of Respondent was that Respondent's teaching was unsatisfactory. On December 8, 1997, Principal Meltzer performed a mid-year evaluation of Respondent. The assessment instrument used by Respondent to evaluate its teachers was the Classroom Teacher Assessment System (CTAS). Using CTAS, teachers received a rating of either a one (a concern) or a two (acceptable) in 16 areas of teacher performance. Respondent was identified as an annual contract (AC) teacher on the CTAS. On the mid-year evaluation, Respondent received a score of 20 and was rated unsatisfactory, with 12 areas of concern being listed. The areas of concern are also referred to as deficiencies. Principal Meltzer based the evaluation on the observation of December 4, 1997, and all occurrences from October 13, 1997. The concerns listed were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; Demonstrates Knowledge of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; Demonstrates Self Control; Demonstrates Effective Working Relationship with Coworkers; Demonstrates Effective Working Relationship with Parents; and Adheres to and Enforces School Policies. Respondent was provided a copy of the FPMS observation and the CTAS mid-year evaluation. The observation of December 4, 1997, contained what can be considered written feedback, but, as written, the feedback could have been better prepared. The mid-year evaluation of December 8, 1997, provided Respondent notice of the deficiencies. At the request of Respondent's union representative, Principal Meltzer agreed to re-observe and re-evaluate Respondent. The union representative noted that it was humanly impossible to correct 12 deficiencies. Principal Meltzer agreed that the second observation and evaluation would replace the first observation and evaluation. Principal Meltzer had the discretion to grant the request and granted the request over the objection of Dr. Jeanne Burdsall, manager of Petitioner's Professional Standards. Principal Meltzer performed the agreed-upon formal observation on January 13, 1998. This observation was also not satisfactory. Respondent received her agreed-upon second mid-year evaluation on January 16, 1998. She received a score of 27 and was rated unsatisfactory, with six areas of concern listed. The areas of concern were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. These six concerns were the most important concerns to Principal Meltzer. Respondent was also placed on a School-Site Assistance Plan (School-Site Plan) on January 16, 1998. The School-Site Plan was developed to address Respondent's deficiencies, together with improvement strategies. No plan was developed for the concern of Demonstrates Effective Working Relationship with Parents because Principal Meltzer concluded that the parents' complaints had been effectively resolved through Respondent's meetings with the parents. Included in the School-Site Plan were agreed-upon dates for reviewing Respondent's progress. The School-Site Plan also provided, among other things, that observations would be conducted to determine whether the deficiencies were corrected. Principal Meltzer reviewed the School-Site Plan with Respondent on January 22, 1998. A copy of the School-Site Plan was provided to Respondent on January 28, 1998. The School-Site Plan was effective through March 10, 1998, which was the latest date that Principal Meltzer had to notify Respondent and Petitioner whether his intent was to recommend Respondent for reappointment. The School-Site Plan was essentially divided into two parts, which were for Respondent to engage in self-study and for her to perform her normal teaching duties. The parties agree that Respondent completed the self-study part of the School-Site Plan. Formal observations were conducted to determine whether Respondent performed her normal teaching duties. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 10, 1998, Pamela Tepsic, Petitioner's Program Specialist, who is also a certified FPMS observer, conducted an observation of Respondent to assist Respondent in improving management of student conduct. Ms. Tepsic's observation was not to be used for evaluative purposes. Some of the matters observed were discussed with Respondent on the same day of the observation. A follow-up conference was scheduled with Respondent for February 19, 1998. Ms. Tepsic made ten written recommendations, which were provided to Respondent on February 20, 1998. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 12, 1998, Linda Long, Petitioner's ESE Team Leader for Area 2, conducted an observation of Respondent for the purpose of assisting Respondent with grouping the IEPs of Respondent's students. Ms. Long wanted to observe Respondent's class before reviewing the students' IEPs. Ms. Long met with Respondent on February 26, 1998, to review the observation and the recommendations made. Ms. Long made four recommendations and provided Respondent with copies of strategies, which were from the State of Florida, Department of Education. During her meeting with Respondent, Ms. Long reviewed the students' IEPs and attempted to place them in groupings because it was difficult for Respondent to engage in direct teaching due to the many groups of children in Respondent's class. Ms. Long's observation was also not to be used for evaluative purposes. On February 17, 1998, Assistant Principal Cardozo conducted a FPMS formative observation of Respondent, focusing on the domain of Instructional Organization and Development, but she did not review the IEP's of Respondent's students prior to the observation. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made specific recommendations, and on February 18, 1998, she met with Respondent and reviewed the observation and recommendations. Assistant Principal Cardozo's recommendations included behaviors to continue or maintain and behaviors to increase. Assistant Principal Cardozo's observation was to be used for evaluative purposes. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 18, 1998, Hugh Brady, Petitioner's Instructional Support Team member of Area 2, conducted an observation of Respondent. He observed, among other things, that many of Respondent's comments to her class were not conducive to teaching VE students. Mr. Brady made several recommendations and conferenced with Respondent on February 25, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Mr. Brady's observation was not to be used for evaluative purposes. On February 19, 1998, Assistant Principal Cardozo conducted a formal FPMS summative observation of Respondent. She observed that Respondent continued to engage in ineffective teaching, including not teaching concepts completely and failing to give definitions, attributes, examples, and nonexamples. Assistant Principal Cardozo made several recommendations and conferenced with Respondent on February 23, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Assistant Principal Cardozo's recommendations included behaviors for Respondent to continue or maintain; behaviors for Respondent to increase; and behaviors for Respondent to reduce or eliminate. Her observation of Respondent was to be used for evaluative purposes. On February 26, 1998, Carol Parks was requested to serve as Respondent's peer teacher. On March 2, 1998, Ms. Parks met with Respondent and reviewed Respondent's lesson plans from which suggestions were made by Ms. Parks regarding planning and recording instructional objectives and improvement to Respondent's lesson plans. On March 5, 1998, Assistant Principal Cardozo conducted a formal FPMS formative observation of Respondent, focusing on the domain of Presentation of Subject Matter. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made recommendations, and on March 10, 1998, she met with Respondent and reviewed the observation and recommendations. Principal Meltzer failed to comply with the School- Site Plan as to having progress reviews on the specific dates which were set-aside. The dates scheduled for review of Respondent's progress were January 30, 1998, February 20, 1998, and March 6, 1998. On March 10, 1998, the latest date for Principal Meltzer to recommend non-renewal of an employee, Principal Meltzer conducted a CTAS annual evaluation of Respondent, who was identified on the evaluation as an AC employee. The observations considered by Principal Meltzer were the observations conducted by himself on December 4, 1997, and January 13, 1998; and by Assistant Principal Cardozo on February 17, 1998,1 and February 19, 1998. On the annual evaluation, Respondent scored 26 and was rated unsatisfactory, with the same six areas of concern listed as on the mid-year evaluation of January 16, 1998. The six concerns were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. Principal Meltzer determined that Respondent had failed to correct the six deficiencies. However, as previously indicated, the concern of Demonstrates Effective Working Relationships with Parents was no longer considered a concern, and, therefore, Respondent failed to correct five deficiencies. By letter dated March 10, 1998, Principal Meltzer notified Respondent that, in accordance with Section 231.36, Florida Statutes, and the Settlement Agreement, he was recommending that she not be reappointed for the 1999-2000 school year. In the letter, Principal Meltzer also encouraged Respondent to continue working to improve her performance and, if her performance significantly improved before the end of the 1998-99 school year, he may reconsider his decision. Respondent received this letter on the same date, May 10, 1998. No assistance was provided to Respondent after March 6, 1998. Even though Principal Meltzer had recommended non- reappointment for Respondent, he conducted an observation of Respondent on May 14, 1998. He observed that Respondent continued to need considerable improvement and made several recommendations for improvement. Had Principal Meltzer determined, as a result of his observation of May 14, 1998, that Respondent had made significant improvement, he could have rescinded his recommendation of non-reappointment and recommended reappointment of Respondent. By letter dated June 19, 1998, Petitioner notified Respondent that she was cleared of the allegation of battery of students made against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order and therein: Dismiss the Administrative Complaint filed against Betty Windecker. Reinstate Betty Windecker with a professional service contract, full backpay, and lost benefits. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 27th day of June, 2000.
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
The Issue The issues in this case are: (1) Whether Petitioner's allegations regarding Respondent schoolteacher's purported performance deficiencies are, in fact, true, thereby justifying Petitioner's placing Respondent on statutory performance probation; (2) If the first question is answered in the affirmative, then, Whether Respondent satisfactorily corrected the specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3)(d), Florida Statutes; and (3) Whether Respondent's employment should be continued or terminated.
Findings Of Fact Material Historical Facts At all times material to this case, Respondent Samuel K. Young ("Young") was a teacher in the Palm Beach County School District ("District"). From 1993 until July 2003, when Respondent Palm Beach County School Board ("Board") suspended him without pay, Young taught English at the Alexander W. Dreyfoos, Jr. School of the Arts ("Dreyfoos"), a magnet high school for students interested in an arts-centered education. In August or early September of 2001, shortly after the beginning of the 2001-02 school year, one of the Assistant Principals at Dreyfoos, Tanya Daniel, began routinely to observe Young, on an "informal" basis, while he was teaching his classes. These unscheduled, informal observations were triggered by students' complaints, of which Ms. Daniel, as Young's immediate supervisor, had been the recipient or been made aware. As time passed, the informal observations became increasingly formal. On October 25, 2001, Ms. Daniel conducted a formal evaluation of Young, using the Summative Observation Instrument, which is a tool that was developed for the Florida Department of Education's Florida Performance Measurement System. Another Assistant Principal, Leo Barrett, also started formally observing Young's classes. By early December 2001, Ms. Daniel had come to the conclusion that Young was not performing his teaching responsibilities in a satisfactory manner. Specifically, Ms. Daniel believed that Young was deficient in the areas of classroom management; presentation and organization; planning; student assessment; obedience to policies and procedures; and maintenance of the learning environment. Two points are especially notable about Ms. Daniel's negative assessment of Young. First, she placed considerable reliance on student feedback. Indeed, Ms. Daniel invited and encouraged Young's students to report to her on how he was doing in the classroom. Second, she did not rely upon student performance as measured, in accordance with Section 1008.22, Florida Statutes, by state and/or local assessments. On January 8, 2002, as a result of Ms. Daniel's evaluation, the Principal of Dreyfoos, Ellen Van Arsdale, placed Young on school-level performance probation pursuant to the procedures spelled out in the Classroom Teacher Assessment System (CTAS) Evaluation Handbook (the "CTAS"). (Under the Collective Bargaining Agreement Between the District and the Palm Beach County Classroom Teachers Association, effective July 1, 2002 to June 30, 2005 (the "Union Contract"), the District is required to conduct formal evaluations of teachers "in keeping with" the 1999 CTAS.) The CTAS provides that a teacher whose performance is found deficient must be afforded at least 30 calendar days to improve his performance to a satisfactory level. During that time, the teacher must be given "school-site assistance" to help him correct the identified performance deficiencies. Accordingly, a 30-day School-Site Assistance Plan was developed for Young and put into effect on January 8, 2002. The school-level performance probation that began in January 2002 constituted a new phase in the evaluation process. The purpose of the first phase, which lasted about three months (from September through December 2001), purportedly was to determine whether Young's performance was satisfactory or not. Thus, the first-phase evaluators should not have assumed at the outset that Young's performance was satisfactory or unsatisfactory. In contrast, during the second phase, the evaluators worked from the initial premise that Young's performance was, in fact, unsatisfactory, in the several areas noted by Ms. Daniel. The focus, therefore, was on whether Young was improving sufficiently to correct deficiencies that were assumed to exist. Throughout the school-level probationary period, a number of evaluators reviewed Young's performance. Ms. Van Arsdale conducted several evaluations, and Mr. Barrett performed at least one. Another was conducted by Dr. Lisa Troute, a Curriculum Specialist with the District. Others, too, were involved. None of the evaluators questioned the conclusion, which was based largely on Ms. Daniel's opinions, that Young's performance actually was deficient. Ms. Daniel did not observe Young's classroom performance during this second phase, evidently in consequence of Young's having voiced some concerns about her impartiality. Ms. Daniel remained an important participant in the process, however, and she continued actively to solicit students' opinions about Young's competence. On February 20, 2002, she interviewed at least three of Young's students, making handwritten notes (which are in evidence) to memorialize their respective assessments. Ms. Daniel asked one student to rate Young's performance on a scale from 1 to 10, with 1 being "poor" and 10 being "great"; the student gave Young a 3.5. There is no evidence that Ms. Daniel elicited the opinions of a random, representative sample of Young's students——or instead, for example, polled only the known malcontents. There is also no persuasive evidence that Ms. Daniel ever did anything but accept the students' mostly unfavorable opinions uncritically. What the evidence does establish is that Ms. Daniel put great weight on the students' opinions——so much so that the students she spoke with effectively became Young's evaluators themselves. The school-level probationary period was extended well beyond 30 days, and ended up lasting until the end of the 2001- 02 school year. By letter dated May 17, 2002, Ms. Van Arsdale informed the Superintendent that Young's performance remained unsatisfactory after 91 days of school-site assistance. Specifically, it was Ms. Van Arsdale's opinion that Young's performance was deficient in the following six areas, each of which is a designated "indicator" of competence under the CTAS: Management of Student Conduct; Presentation of Subject Matter; Learning Environment; Planning; Assessment; and Policies/Procedures/Ethics. Ms. Van Arsdale asked the Superintendent to place Young on statutory performance probation for 90 days, pursuant to Sections 231.29 and 231.36, Florida Statutes (2001). The assessment procedure used to evaluate Young during the school-level probation was not primarily based on the performance of students as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statutes. In fact, the evaluators placed no meaningful weight on student performance, so measured. Nevertheless, the Superintendent acceded to Ms. Van Arsdale's request. By letter dated May 20, 2002, the Superintendent notified Young that he would be placed on performance probation for 90 calendar days. The statutory performance probation——a distinct, third phase of the evaluation process——commenced in August 2002, at the beginning of the 2002-03 school year. On August 22, 2002, Young was given a Professional Development Plan, which called for the provision of assistance, as well as ongoing evaluations, through November 2002, when a final evaluation would be issued passing judgment on whether he had——or had not——corrected the alleged performance deficiencies. The statutory performance probation unfolded largely as had the school-level performance probation. Young was, again, observed and critiqued by a number of evaluators. Of the written evaluations in evidence, the most balanced is a report dated September 22, 2002, which Dr. Troute prepared concerning her observation of Young on September 10, 2002. Based on this contemporaneous report, the undersigned is persuaded that Dr. Trout then believed Young was a "satisfactory" teacher who could, with additional effort, be a "good" teacher. Others were less charitable, however, including Ms. Van Arsdale, who prepared Young's final evaluation based on her November 5, 2002, observation of his class. On the CTAS's evaluation form, Ms. Van Arsdale gave Young a rating of "concern" on five separate "indicators" of competence: Management of Student Conduct; Presentation of Subject Matter; Learning Environment; Planning; and Assessment. This resulted in an overall evaluation of "unsatisfactory." The assessment procedure used to evaluate Young while he was on statutory performance probation was not primarily based on the performance of students as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statutes. Indeed, once again, the evaluators placed no meaningful weight on student performance, so measured. By letter dated November 6, 2002, Ms. Van Arsdale notified the Superintendent that, in her opinion, Young had failed to correct performance deficiencies and therefore should be fired. The Superintendent agreed, and by letter dated November 14, 2002, informed Young that he would recommend to the Board that Young's employment be terminated. The Board later accepted the Superintendent's recommendation, and Young was suspended without pay, effective on or about July 16, 2003, pending his discharge. The CTAS A. Teachers who are evaluated under the CTAS are rated on 15 categories of qualities or abilities, which are referred to collectively as "indicators." Each indicator, such as, e.g., Management of Student Conduct, is best understood not as a single ability, but rather as a label for a skill-set, that is, a collection of qualities, abilities, or skills. The indicators are divided into two classes called "performance areas." The performance areas are: "A. Teaching and Learning" and "B. Professional Responsibilities." There are eight indicators under Teaching and Learning and seven under Professional Responsibilities. The CTAS uses a two-point rating scale. The only grades used for scoring a teacher on the 15 indicators are "acceptable" and "concern." The section of the CTAS's evaluation form where the grades are recorded is reproduced below, with the ratings from Ms. Van Arsdale's final evaluation of Young, dated November 6, 2002, added to show how the form is used in practice: A. TEACHING AND LEARNING ACCEPTABLE CONCERN 1. Management of Student Conduct X 2. Human Development and Learning X 3. Presentation of Subject Matter X 4. Communication X 5. Knowledge of Subject Matter X 6. Learning and Environment X 7. Planning X 8. Assessment X B. PROFESSIONAL RESPONSIBILITIES ACCEPTABLE CONCERN 9. Technology X 10. Record Keeping X 11. Continuous Improvement X 12. Working Relationships with Coworkers X 13. Working Relationships with Parents X 14. Policies/Procedures/Ethics X 15. Duties as Assigned by the School Administration X The teacher's overall evaluation rating of "satisfactory" or "unsatisfactory" depends entirely upon the combination of ratings awarded on the 15 indicators. The following combinations require an overall evaluation of "unsatisfactory": NUMBER OF CONCERNS SECTION A SECTION B 3 0 2 1 1 3 0 4 As can be seen, the indicators under Section A carry greater relative weight in the overall evaluation than those under Section B. Because Young received five "concerns" on his final evaluation, the CTAS dictated that he be given an overall "unsatisfactory" rating. In rating the various indicators, evaluators are supposed to consider numerous "performance criteria." The CTAS defines the "performance criteria" as "examples of descriptors which define the indicators." To be more precise, the performance criteria are specific behaviors, acts, and practices that the teacher should be performing as an outward manifestation of the teacher's command or mastery of the respective skill-sets known as indicators. Various performance criteria are set out in the CTAS as "bullet points" under each of the indicators. The first bullet point under the first indicator (Management of Student Conduct), for example, is: "[The teacher] specifies and explains rules of conduct and provides for practice of rules when appropriate." For each of the indicators, the CTAS further provides a set of "data collection sources." The CTAS defines the term "data collection sources" as "examples of multiple data sources used to determine a rating of 'acceptable' or 'concern.'" In other words, the data collection sources are lists of "evidence" that can be examined to determine whether, and perhaps how well, the teacher is performing the prescribed performance criteria. For example, the data collection sources for the indicator Planning are: observation reports; lesson plans; conference notes; assessment data; instructional materials; and written reports. B. As we have seen already, the CTAS defines the terms "satisfactory" and "unsatisfactory" in a completely objective fashion. It does so by specifying the rating combinations that will result in an overall evaluation of "unsatisfactory." Thus, anyone who knows the number of "concerns" that a teacher has received in Sections A and B can apply the formula and assign the overall grade; this ministerial function requires neither discretion nor judgment. What does demand discretion and judgment is rating the teacher's command or mastery of the respective indicators as either "concern" or "acceptable." This rating function requires that qualitative determinations be made at two distinct levels. First, for every indicator (skill-set), the evaluator must decide how well the teacher is executing each of the several subsidiary performance criteria (behaviors). Then, based on how well the teacher is executing the subsidiary performance criteria (behaviors), the evaluator must render a judgment as to how well the teacher is doing with regard to the indicator (skill-set) that comprises those performance criteria. At both stages of the analysis, to arrive consistently at fair conclusions——that is, to obtain similar results with respect to similarly performing teachers most of the time——requires (a) that there be uniform standards to guide evaluators in making the requisite judgment calls and (b) that the same standards always be applied, to all teachers in all evaluations. Thus, it is important to know what standards, if any, the CTAS prescribes. To begin, some negative findings are in order. First, the indicators are not standards upon which to make a judgment. They are, rather, the qualities to be judged, using appropriate standards of decision. Second, the performance criteria are likewise not standards. They define or prescribe the relevant facts to which, jointly and severally, standards should be applied, so as to make a judgment regarding one indicator or another.1 To illustrate, the fact that a teacher is observed "reinforc[ing] appropriate social behavior" tells us nothing about how well he does this, much less about how well he has mastered Management of Student Conduct, which indicator comprises the referenced performance criterion. Rather, to make a qualitative judgment regarding the teacher's performance of this practice requires some test, some basis, for distinguishing between good and bad performances. Similarly, the ultimate fact that the teacher acceptably "reinforces appropriate social behavior" tells us relatively little, presumably, about whether the teacher's mastery of the indicator Management of Student Conduct is acceptable or not, for there are eleven other performance criteria to be considered also in respect of this particular indicator. To make a qualitative judgment regarding whether the teacher has demonstrated an acceptable command of the skill-set known as Management of Student Conduct requires some sort of standard, some yardstick for measuring the relative importance of the teacher's demonstrated expertise (or lack thereof)——as determined by the evaluator——in the execution of the various performance criteria. The only "standards" that the evidence in this case persuasively establishes are the terms "acceptable" and "concern." Superficially, these terms seem to possess some degree of objective content. On reflection, however, it should be seen that they do not, a point which will be examined in greater detail below. The undersigned, moreover, has searched the CTAS and the record in vain for an adequate definition of these terms. As far as the proof in this case goes, these terms are criteria without content, and as such can be used as cover for almost any decision an evaluator might want to make. C. It is desirable at this point to elaborate on why the terms "concern" and "acceptable," by themselves, are not standards that evaluators (or administrative law judges or courts) can consistently and fairly apply to teachers across- the-board. As a starting point, envisage a spectrum comprising every conceivable level or degree of teacher talent, ranging from, in the abstract, "worst imaginable" (or "perfectly awful") to "best imaginable" (or "perfectly excellent"). It makes no difference, for present purposes, how exactly "worst" and "best" might be defined. Rather, it is sufficient to say of the "worst" teacher, in regard to any imaginable attribute, that "none could be worse." Conversely, it need only be said of the "best" teacher, in regard to any imaginable attribute, that "none could be better." As should be obvious, these "worst" and "best" teachers are constructs that serve to define the terminal points at either end of the "talent-level spectrum" we are calling to mind. This talent-level spectrum can be depicted with a simple drawing, as follows: Worst ? ? Best It can now be observed that all teachers, everywhere, must fall somewhere on this talent-level spectrum, between the two poles as we have defined them. Of course, the precise point at which any given teacher should be placed on the spectrum, at any given time,2 is a matter about which reasonable people, in every instance, could disagree. But that is presently of no consequence. Turning next to the facts of this case, the question is posed: Where, on this spectrum of talent, should the mark separating "concern" from "acceptable" be placed? Given their ordinary meanings, the words themselves provide no guidance in this regard. Either of the following, for example, is consistent with the plain meaning of "concern" and "acceptable": Worst ? ? ? Best Concern Acceptable Worst ? ? ? Best Concern Acceptable It does not matter how the mark-point in either example might be defined. What matters is the relationship between the mark and the respective poles. As the mark moves closer to the "worst" terminal, the "concern" band becomes narrower, leaving more teachers on the "acceptable" side. Conversely, moving the mark towards the "best" terminal narrows the "acceptable" band, consigning more teachers to the "concern" category. In the instant case, there is no persuasive evidence on which the undersigned can base a finding as to where the mark should be placed. As a result, the undersigned cannot make de novo findings regarding whether Young's execution of the performance criteria was "acceptable" or not, or whether, ultimately, his command of the indicators in dispute was of "concern," as the Board has alleged. To do that, the undersigned would need to apply standards of his own devising. Whatever merit such standards might have, they would not be the standards used to judge other teachers, and hence it would be unfair to apply them to Young. Moreover, there is no persuasive evidence in this case as to where the several evaluators placed the mark when they assessed Young's performance.3 The undersigned therefore cannot find that the evaluators all used the same standards——cannot even infer that they did. Consequently, assuming it were proper to do so, the undersigned could not review whether the evaluators acted fairly and appropriately vis-à-vis Young or whether they reached a "correct" (i.e. legally sustainable) judgment regarding his teaching performance.4 Student Performance The 1999 CTAS that was used in evaluating Young had been developed in 1998 and approved by then-Commissioner Tom Gallagher in January 1999. By letter dated January 25, 1999, Commissioner Gallagher informed the District that its CTAS had received "Full Approval." The Commissioner further instructed the District: [I]t will not be necessary for you to resubmit the [CTAS] unless there are statutory changes which affect the requirements for district instructional performance appraisal systems or unless you substantively revise your system for other reasons. In the very next legislative session following this letter, the legislature substantially amended the statute governing the procedures and criteria for the assessment of instructional personnel, which at the time was Section 231.29, Florida Statutes (1999).5 See Ch. 99-398, § 57, Laws of Florida. These statutory changes, which will be examined more closely in the Conclusions of Law below, took effect on June 21, 1999. Id. at § 78. The thrust of the relevant amendment was to require that, in evaluating teacher performance, primary emphasis be placed on student performance, as measured by "state assessments" and "local assessments." These latter two terms were defined, at the time, in Section 229.57, Florida Statutes (2000). Section 229.57 was subsequently transferred to Section 1008.22, Florida Statutes (2003). The District never amended the CTAS to reflect the statutory changes. Not surprisingly, therefore, the CTAS puts little or no particular emphasis on student performance6 and makes no specific references (that the undersigned can locate) to state and local assessments within the statute's contemplation.7 Consequently, as was mentioned several times above, none of the assessment procedures used during Young's protracted evaluation was primarily based on student performance as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statues (2003). Equally if not more important, however, is the lack of persuasive (indeed any) evidence in the record regarding the performance of Young's students as measured by state and/or local assessments. Because of this, it is impossible for the undersigned to make de novo findings based primarily on student performance as to either (a) whether Young's execution of the performance criteria was "acceptable" or not, or (b) whether, ultimately, his command of the indicators in dispute was of "concern," as the Board has alleged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Young of all charges brought against him in this proceeding; (b) providing that Young be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Young back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 17th day of March, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 17th day of March, 2004.
Findings Of Fact Each of the Petitioners is a school teacher at Rosenwald Middle School in Bay County, Panama City, Florida. Celestine Cherry has a total of twenty-four years of teaching experience, all of which have been in the Bay County school system. She has taught home economics and physical education at Rosenwald Middle School for the last nine of those years. Ida Conner has had twenty which have been in Bay County. She began at Rosenwald teaching language arts and U.S. history in 1988. Albert Harris has had fourteen years of teaching experience, all but one of which have been in Bay County. He has a BS degree in biology and is certified to teach science to grades seven through twelve. Grace Bryan has had twenty time of the hearing, she had been teaching at Rosenwald for fifteen years. She is an ESE teacher who is certified in the area of mental retardtion. Carol Love became the assistant principal at Rosenwald in 1989 and was promoted to principal of Rosenwald in 1990. During the 1989-90 school year, Love performed teacher evaluations of the four Petitioners and rated each as unsatisfactory. It is these unsatisfactory evaluations which the Petitioners allege were the result of racial discrimination. Love taught for eighteen years at all levels and has been an administrator since 1986. She holds a Masters Degree in Education and had served as assistant principal for three years at Rutherford High School prior to her assignment to Rosenwald. Jack Simonson was the superintendent of the Bay County schools from November 22, 1988, to November 16, 1992. The Bay County School Board is the entity ultimately responsible for the operation of the schools of that county and is the Petitioners' employer. One of Simonson's major campaign promises in seeking election as superintendent was to rigorously evaluate school administrators and employees. After his election, he regularly reminded the administrators of his desire that they conduct accurate evaluations. During his term as superintendent, Simonson strictly pursued the evaluation of district administrators. This policy resulted in the non-renewal of four white administrators, who either returned to the classroom or left the school system. He reduced one black administrator from principal to assistant principal. No black administrators were returned to the classroom or non-renewed. Except for his demand for rigorous evaluations, Simonson took no part in the 1989-90 annual evaluations of the Petitioners. When Carol Love began as assistant principal at Rosenwald in 1989, she worked for Eli Campbell, the principal. The other assistant principal was Lynn Stryker. Campbell is black and Stryker is white. The Bay County School District uses the Florida Performance Measurement System (FPMS), which is a Florida Department of Education approved method for teacher evaluation. Love is a certified FPMS evaluator. The FPMS identifies effective and ineffective teacher behaviors. The evaluator's responsibility is to observe whether or not the teacher exhibits these behaviors during the periods of observation. The actual observations are noted on a summative form and are then transferred to the evaluation form. A tallying of the observations determines whether or not the teacher receives a satisfactory or unsatisfactory evaluation. The FPMS evaluation instrument predetermines which behaviors are effective and which are ineffective. These decisions are not made by the evaluator. The evaluator merely notes the behaviors observed. Bay County teachers are all given in includes copies of the evaluation instruments. The teachers are therefore aware, at the beginning of each school year, of the behavior which will be observed, and whether or not they are effective or ineffective under the FPMS. For the 1989-90 evaluations, Campbell assigned one teachers to himself and one previously taught with Karl Elliott, who is white, and Conner, who is black, she felt uncomfortable in evaluating these two teachers, and therefore requested Love do their annual evaluations. In addition, the two assistant principals thought it best to keep departments together for the purpose of evaluation. It was agreed that Bryan and Laticia Washington, both of whom are black, would be assigned to Love, so that she would then be evaluating the entire EMH Department. All of these proposed changes in evaluations were discussed with Mr. Campbell at the administrators' regular Monday morning meeting and he gave his approval for these changes to be made. In addition to the unsatisfactory evaluations of the Petitioners, Love also gave unsatisfactory evaluations in 1989-90 to Karl Elliott, Fran Walters, Wayne Davidson, and Charles Clark, all of whom are white. Two black teachers, Ms. Washington and Ms. Smith, received satisfactory evaluations from Love for that same evaluation period. Campbell signed all of the evaluations and improvement notices given to the Petitioners in their annual evaluation in 1989-90. It was not until some time later that he raised some procedural objections to the improvement notices. None of these procedural objections are at issue in this matter. For the 1989-90 school year, Simonson assigned Assistant Superintendent Glenda Hamby to evaluate Campbell. Prior to the beginning of the 1989-90 school year, Simonson determined that teacher evaluations at Rosenwald had not been appropriately conducted for the 1988-89 school year. By a memo dated August 1, 1989, Simonson gave specific directions to Campbell regarding Campbell's performance and the expectations regarding Campbell's administration of Rosenwald for the 1989-90 school year. Campbell clearly was on notice that big improvements were expected or else Campbell would be removed as principal of Rosenwald. Rather than making a genuine effort to improve his administration at Rosenwald, Campbell instead embarked on a campaign of public challenges to Simonson, agitated the faculty and the black community to help him keep his position as principal, failed to acknowledge deficiencies in his performance, and publicly alleged that his problems were the result of racism. Campbell was unhappy that Love had been assigned to Rosenwald and his relationship with her was markedly uncooperative. Campbell publicly aired his allegations of racism, going so far as to discuss them on television. Hamby's unsatisfactory evaluation of Campbell was the final factor that resulted in his removal as principal at Rosenwald and his reassignment within the Bay County School District. Love's evaluations of the Petitioners for the 1989-90 school year were consistent with the requirements of the FPMS system. She conducted several classroom observations of each Petitioner and based the teacher assessments, professional development plans and improvement notices on the observations. Cherry received an overall assessment of unsatisfactory based on deficiencies in the areas of Instructional Organization and Development and Communication: Verbal and Nonverbal. A professional development plan was given which further identified the specific goals and strategies for correcting the deficiencies. Finally, improvement notices were given that specifically defined the unsatisfactory performance, the improvement desired and the assistance to be provided to the teacher for achieving that improvement. Cherry was unsatisfactory for her use of incorrect English in the classroom, inadequate verbal and nonverbal communication skills, inadequate instructional organization and development, and inappropriate and/or lack of supervision in class. She refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Instead, Cherry took the position that the evaluations were incorrect and were based on racism. In May, 1990, Love went to Cherry's class in response to a complaint from a teacher and a student. She discovered that the student's were engaged in writing and turning in to Cherry letters directed to Love concerning Cherry's unsatisfactory evaluation and her quality of teaching. Love sent Cherry from the room and conducted an investigation of the incident. As a result, Cherry received two letters of reprimand for these actions in her classroom. While Cherry did grieve these two letters of reprimand, the grievances were denied after binding arbitration. Cherry has received unsatisfactory evaluations from Love in each school year since the 1989-90 school year. Cherry continues to believe that the evaluations and reprimands are the result of racism. To support this belief, Cherry also cites to an incident during a school picture when Love told her to sit on the ground, a time when Love told Cherry not to read her newspaper during faculty meetings, and an occasion when Love required Cherry to get to her class room in a timely fashion. In fact, the great weight of evidence is contrary to Cherry's allegations of racism and no racial content in these incidents has been shown. Cherry maintains that the deficiencies noted in the evaulations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Cherry's evaluations were based and in comparing those observations with Cherry's demeanor as a witness at hearing, it is found that some of the unsatisfactory observations regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Cherry did not use grammatically correct English, was at times vague and rambling, maintained a hostile posture, and was verbally hostile and caustic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Conner received an overall evaluation of unsatisfactory with areas of deficiency in Instruction Organization and Development, Knowledge/Presentation of Subject Matter, and Communication: Verbal and Nonverbal. Conner also received a Professional Development Plan with goals and strategies for remediating the deficiencies and three improvement notices which set forth a description of the unsatisfactory performance, improvement desired, and assistance to be provided to assist Conner in improving the unsatisfactory performance areas. Conner was unsatisfactory for verbal and nonverbal communication; for failure to begin instruction promptly, handle materials efficiently, maintain academic focus, conduct beginning and ending review, question effectively, recognize and amplify responses, and give appropriate praise; and for her inability to use English correctly. Conner also refused to accept the validity of the criticisms and failed to carry out any of the strategies for improvement. Conner took the position that the evaluations were incorrect and were based on racism. Conner has received unsatisfactory evaluations from Love in each school year since 1989-90. The inadequacies remained the same. Because of her failure to remediate these deficiencies, Conner was removed from teaching language arts and history and was reassigned to teach alternative education for the 1990-91 school year. Conner suggests that her charge of racism is supported by several incidents. Conner asserts that Love took money from her alternative education budget to buy computers to go in other classrooms. This is simply not so. Conner also believes that Love's racist motivation resulted in omission of an award for Conner in September 1990, in interception of a note that Conner sent by way of a student, in the failure to invite Conner to a school literary luncheon in January, 1993, and in the failure to invite Conner to an in program on Macintosh computers in December, 1992. The evidence is to the contrary in each of these incidents. No evidence of racial content or motivation has been presented in any of these incidents. Conner also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In reviewing the actual Summative Observation Instruments upon which Conner's evaluations were based and in comparing those observations with Conner's demeanor as a witness at hearing, it is found that some of the unsatisfactory behaviors regarding communication, verbal and nonverbal, were evident in this proceeding. Specifically, Conner did not use grammatically correct English, mispronounced basic words, and was at times loud, hostile, and sarcastic. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Harris received an overall evaluation of unsatisfactory for the 1989- 90 school year. Deficiencies were noted in the areas of Instructional Organization and Development, Communication: Verbal and Nonverbal, and Personal Qualities. As with the other Petitioners, a professional development plan and improvement notices were provided. Harris was unsatisfactory for his inability to question effectively, to recognize and amplify responses, to give appropriate praise and to express enthusiasm and interest verbally and through body behavior. He was also frequently tardy to his classes thus leaving students unsupervised and he needed improvement in classroom behavior management. As did Cherry and Conner, Harris refused to accept the validity of the criticisms and failed to do any of the suggested strategies for improvement. Harris also believed that the unsatisfactory evaluation was the product of racism. Harris complained that he could not effectively teach science from a regular classroom as he had done since 1987. At the beginning of the 1990-91 school year, Love assigned Harris to a science room, which gave him better access to the science closet for equipment and a demonstration table, running water, and an outside access door. Harris' teaching did not improve and he has been evaluated as unsatisfactory in every subsequent year. He was finally reassigned to teach alternative education. To support his claim that these unsatisfactory evaluations are the result of racial discrimination, Harris cites to two incidents in which he thought Love was rude and abrasive. One incident occurred when Love chided Harris in the hallway about being late for his class; the other occurred in the gymnasium just before an assembly when Love told Harris to "move it" and to "get those kids in line." No evidence was offered to show a racially discriminatory motivation for these incidents. Harris also maintains that the deficiencies noted in the evaluations are incorrect and are pretexts for discrimination. In examining the Summative Observation Instruments and in comparing those observations with Harris' demeanor as a witness at hearing, it is found the some of those same unsatisfactory behaviors were evident in the hearing. Specifically, Harris spoke in a low monotone, showing no enthusiasm or interest. He was lethargic, made no eye contact, and had a flat affect. The observations which underlay the evaluations appear to be supported by the evidence and are not pretexts for discrimination. Bryan received an overall unsatisfactory evaluation for the 1989-90 school year, with deficiencies noted in Instructional Organization and Development, Communication: Verbal and Nonverbal, and Management of Student Conduct. Bryan was given a Professional Development Plan and improvement notices. She also believes that the unsatisfactory evaluation was the result of a racial motivation, but she, unlike the other Petitioners, took advantage to the suggested strategies for improvement by reviewing tapes and research, exploring new methods, practicing those improved behaviors, and attending a class. Bryan's efforts to improve were successful and she has not received another unsatisfactory evaluation from Love. Bryan tendered no competent evidence to show a racially discriminatory motivation for the unsatisfactory rating given in 1989-90. The improvement notices given to the Petitioners required "Improvement will be demonstrated by October 1, 90." The stated consequences if improvements were not made was "Progressive discipline which could lead to dismissal." No disciplinary actions have been taken against the Petitioners at any time since the initial evaluations. Love has consistently reproved both black and white teachers for being late to class. In dealing with the faculty, staff and students of Rosenwald, Love is direct, firm, aggressive, and at times, abrasive, regardless of the race of the party with whom she is dealing. It is not unusual for her to call out instructions to teachers or students in the common areas of the campus. The assistant principals under Love are Stryker and Linwood Barnes. Barnes is black. Both have observed Love's interactions with students and faculty on a daily basis. Neither have ever observed Love to treat black students or teachers in a manner different than that with which she treats white students and faculty. Petitioners assert that Love acknowledged her prejudice to Bronkelly Porter, a black student at Rosenwald. In fact, the incident cited occurred after Campbell had rallied students, teachers and the black community in an effort to retain his job. Because of Campbell's accusations against Love, she was regularly harassed by students. The event in question occurred in the cafeteria when she was challenged by Porter, a student with whom she had had problems in the past. Bronkelly yelled out to Love a question about whether she was prejudiced. Love spontaneously and sarcastically said "Yeah, right, Bronkelly, I am." While it is recognized that Love, in an off used a poor choice of words, this statement is not taken to be probative evidence of racial prejudice on the part of Love. Love also made certain statements while counseling Michelle Ward regarding her discipline problems. Specifically, Love told Ward that "if she'd hang around with her own kind then she would not get in so much trouble." The statement was not made in reference to the race of any individual, but instead was intended to get Ward to reconsider the group she was running with in an attempt to decrease Ward's discipline problems. The greater weight of the probative and material evidence establishes that Love at no time took any discriminatory action against the Petitioners on account of their race. Further, there is even less evidence of racial discrimination on the part of Simonson or the Bay County School Board. Petitioners have simply failed to prove their case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying and dismissing the claims for relief filed by Albert Harris, Celestine Cherry, Grace D. Bryan and Ida Conner. DONE and ENTERED this 1st day of June, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 1st day of June, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 92-1698, 92-1699, 92-1700, and 92-2304 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7(6); 9(7); 15(18); and 17(13). Proposed findings of fact 8, 10, 16, 21-23, 26-32, and 37-39 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 11-14, 20, 25, and 33 are irrelevant. Proposed findings of fact 18, 19, 24, and 34-36 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondents Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(9); 2(10); 3(6&11); 4(12); 5(13); 6(15); 7(23); 14(39); 15(35); 16(34); 18(42); 20(39); 22(40); and 24 & 25(14). Proposed findings of fact 8-13, 17, 21, 23, 28, and 29 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 19, 26, and 27 are irrelevant. Proposed finding of fact 30 is unnecessary. COPIES FURNISHED: Leslie Holland Attorney at Law 924 North Gadsden Street Tallahassee, Florida 32303 Franklin Harrison Attorney at Law 304 Magnolia Avenue Panama City, Florida 32402 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149
