Findings Of Fact The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year. The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department. In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district. In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued. The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers. Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation. In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer. All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence. On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years. Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large. On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education. On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges. In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate. The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay. DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida. COPIES FURNISHED: William E. Williams, Esquire Rex D. Ware, Esquire 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32399 P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of July 1987.
The Issue Whether Polk County School Board ("School Board") has just cause to terminate Judy Gail Vann ("Respondent" or "Vann") pursuant to Section 1012.34, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent started working for the School Board in 2000. During the last ten years, she has taught English. In November 2008, the School Board recommended Respondent's termination for excessive absenteeism, dishonesty, ongoing gross insubordination, and not preparing lesson plans. The case came before the Division of Administrative Hearings in Case Number 09-0955.1 On August 20, 2009, a Recommended Order was entered concluding that a preponderance of the evidence in that case did not support the alleged acts in the charging document, and Respondent was reinstated with full back pay. After the School Board reinstated Respondent, for the 2009-2010 school year, she was assigned to Traviss Career Center ("Traviss") to teach 11th and 12th grade English. Prior to this assignment, Respondent had never taught in a high school. Traviss is a school for high school students and adults. Both high school diplomas and certificates in a career field or vocational trade are available to graduates. Traviss students that are trying to achieve a regular high school diploma take the FCAT. Seventy-seven percent of the student population at Traviss who took the 2008-2009 FCAT were reading at level two or below. Level two is a fifth-sixth grade reading level. Polk County requires that the 11th and 12th grade students do the same work as their counterparts at the traditional schools and follow the same curriculum maps.2 Alan Harrell ("Harrell"), the assistant director of curriculum, was Vann's supervisor at Traviss. His primary responsibility is to oversee the academic programs. Such duties include monitoring lesson plans and learning guides, and keeping the curriculum maps on target. Harrell also oversees students' grades and makes sure students are getting the right courses for their diploma. Harrell supervised Vann during the six periods she taught a day. Three of the classes were English III for juniors and three were English IV for seniors. Vann tried to be creative when teaching the curriculum maps. When the students were required to study Shakespeare, Chaucer, and epic works such as Beowulf, she would often-times show modern movies like Hercules to keep the students interested. Harrell did not think the movies were the best teaching methods for the students. Harrell made regular visits to Vann's classroom and met with her about various issues periodically. During Harrell's second meeting with Vann on October 16, 2009, some items discussed were students' grades, homework, and lesson plans. On November 17, 2009, Harrell emailed Vann to instruct her about her lesson plans for the two previous weeks. The email stated: Please post your lesson plans for week of 11/09/2009 and for week of 11/16/2009. They should be posted on Friday prior to the next week so we have some guideline for the substitute to be able to follow when the teacher is absent. During Harrell's fifth meeting with Vann on November 30, 2009, Harrell discussed several areas of concern. The first was her lesson plans not being posted. During the first semester, Vann was absent from school approximately 15 days. On December 11, 2009, Harrell met with Vann again to discuss proper protocol and procedures for preparing lesson plans. Harrell also discussed Vann's numerous absences and the effect on the students. On January 11, 2010, Harrell contacted Vann again about incomplete lesson plans by email. It stated: In reviewing your lesson plans for the week of 1/11/2010, I observe a number of discrepancies that need to be corrected. "same as above" under PLANNING does not define the objectives. "same as above" under PLANNING does not define the Standards/Benchmarks. Under Procedures/Activities, a description of what the intended activity is going to be needs to be described. As previously discussed your lesson plans need to be in line with the curriculum map. On January 13, 2010, Vann emailed Harrell and informed him that she had "reposted the completed version of the lesson plan template for 1/11/10." Deficiencies in Vann's performance as a teacher and absences from school continued into the second half of the school year. Vann's posted lesson plans were incomplete or insufficient, and she would email lesson plans to the school on the mornings when she was absent. Vann was absent approximately 10 days without pay between January 7, 2010, and February 11, 2010, including the 11th. The emails Vann sent during that period listed the following explanations for her absences: January 7, 2010, "I have no voice."; January 11, 2010, "Sick . . ."; January 12, 2010, at 5:19 a.m., "Sick since Friday . . . trying to see doctor today"; January 12, 2010, at 5:24 a.m., "As stated my lesson plan template was incomplete for 1/11/10 because I have been sick and was unable to complete the template."; January 19, 2010, "I have been down with a Migraine for three days and I hope to be able to see the doctor today."; February 9, 2010, "I am having very severe back problems and have a doctor's appointment today."3 On February 12, 2010, Respondent was in a car accident on the way from school on Thornhill Road. A car slammed into her going approximately 55 miles per hour in the drizzling rain. Vann first sought medical treatment on February 25, 2010, from a chiropractor, Dr. Sundermeyer.4 Vann was treated the rest of the school year for her back and spine by the chiropractor. As a result of Vann's continuing decline in performance, on February 25, 2010, Respondent received a Notice of Unsatisfactory Performance, which advised that she had performance deficiencies and was being placed on a 90-day probationary period pursuant to Section 1012.34(3)(d), Florida Statutes. The Notice of Unsatisfactory Performance informed Respondent that she had failed to perform satisfactorily in the following aspects or duties of her job: You have had excessive absences. You have failed to prepare and maintain current lesson plans for your classes. In addition to the fact that the preparation of lesson plans is a requirement of your job, your failure to prepare such plans has made it extremely difficult to maintain the educational process for your students during your absences. The management of your classroom environment, including student discipline, has been extremely poor. You have failed to prepare and deliver appropriate or effective teaching strategies for your students. You have failed to maintain an appropriate and distinct relationship as a teacher with your students. A meeting was held on March 1, 2010, with Vann to discuss recommendations and a plan of action to provide assistance in correcting the deficiencies identified in the Notice of Unsatisfactory Performance. Dr. Dickens, Harrell, Mrs. Amy Hardee("Hardee"), Ms. Angela Dawson, and Vann with her PEA representative attended the meeting. At the March 1, 2010, meeting Vann was informed that she needed to correct the following deficiencies: excessive absences, lesson plan preparation, classroom management, effective teaching strategies, and maintaining an appropriate and distinct relationship with her students. After the meeting, Vann and her union representative met with Hardee, the senior curriculum coordinator of language arts. Vann indicated that her textbook resources were out of date and requested Hardee fix the problem. Hardee immediately located literature and grammar books and made arrangements to have them delivered to Vann. On March 2, 1010, Vann received her 90-Day Corrective Action Plan that specified the following five areas that Respondent was to correct during her probationary period from March 2, 2010, to May 30, 2010: Excessive Absences-It was agreed that you will provide Traviss Career Center a doctor's note when you are ill. You will also make a diligent effort to contact Ms. Loretta Stewart(Principal Secretary) before 6:30am when you are not going to be at work. This will allow sufficient time to obtain a substitute instructor for your class. Lesson Plans-To assist you with improving your classroom management skills, it was suggested that PD 360 be used. Outlines of the segments are attached for your use. Classroom Management-To assist you with preparing lessons for your class, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Effective Teaching Strategies-To assist you in developing effective teaching strategies, it was suggested PD 360 be used. Outlines of the segments are attached for your use. Maintaining a distinct relationship-It was recommended that you refrain from use of unprofessional language and allowing disruptive student behavior during instructional time. You are to work on building a better instructional relationship with your students and expect the respect you deserve. * * * Traviss will provide a substitute for you on Mondays and Thursdays for the remainder of this school year to allow you time to work in the above mentioned areas of deficiency. It is your responsibility to be present at school and working on the criteria listed above. To address the issues with lesson plans, classroom management, and effective teaching strategies, Hardee assigned Vann 39 segments of Professional Development 360 ("PD360") training to view and complete the questions during her probationary period.5 Vann had less than seven hours of PD360 training to complete during her 90-day probationary period. Respondent was provided a list of the 24 modules addressing classroom instruction and 15 modules on differentiated instruction. Each module included a video Vann was to view, followed by approximately six reflection questions that were to be answered on-line by her. On March 2, 2010, Vann acknowledged her understanding and agreement to adhere to the corrective action plan with her signature. To ensure that Vann was successful in completing her PD360 training, a substitute instructor was hired for classroom instruction to allow Vann some time to complete the professional development plan during the 90-day probationary period. However, Respondent chose not to come to work and was absent most of the remainder of the school year. While on probation, from March 3, 2010 to May 5, 2010, Respondent was absent without pay 12 days during March and 17 days during April 29 days.6 Respondent claims that she was not at work because she was sick and couldn't attend. However, Respondent only provided one medical note excusing her from working due to illness. Vann provided the School Board a note that excused her from work from March 17, 2010, until March 18, 2010, which was on an Auburndale Chiropractic, LLC Authorization for Absence form.7 Respondent also provided the School Board a letter dated May 10, 2010, that specified treatment but did not indicate Vann was prohibited from attending work. The letter was from the same chiropractor, Dr. Sundermeyer, on Auburndale Chiropractic, LLC letterhead, not an Authorization for Absence form as previously submitted by Respondent for the March 2010 excused absence. The letter on her chiropractor's letterhead stated: To Whom It May Concern: I am writing in regards of my patient, Judy Gail Vann. I have been treating Ms. Vann for neck pain and lower back pain since February 25, 2010. She has been under my constant care 3 times per week since she started her treatment in this office. Please feel free to contact me if you have any questions concerning my patient's health. Thank you, Dr. Sara Sundermeyer8 During her probationary period, Vann never sought treatment from a medical doctor other than the chiropractor, Dr. Sundermeyer. Respondent was not prohibited from attending work due to her illness.9 Vann failed to provide a doctor's note indicating that she could not attend work for her 29 days of absences without pay during her probationary period. Vann improved with her lesson plans. However, starting April 13, 2010, Respondent submitted the same lesson plans for all classes, no matter whether for the 11th or 12th grade students, and did not distinguish between the separate curriculums required for each grade. While on probation, Vann viewed only 15 of the assigned 39 PD360 modules.10 She completed one of the 15 reflection questions and answers, which was a total of two and one-half hours of the seven hours assigned. Vann also failed to meet either the criteria of contacting Ms. Loretta Stewart (Principal's Secretary) when absent or making the contact before 6:30 a.m. some mornings including: April 5, 2010; March 17, 2010; and April 15, 2010.11 By letter dated May 14, 2010, Principal Dickens ("Dickens") informed Vann that a decision had not yet been made on her reappointment at Traviss. The letter further informed Respondent that she had failed to fulfill several of the requirements for her 90-day Corrective Action Plan, including not providing a doctor's note covering all of her absences for illness when she was ill and unable to report to work and failing to complete the PD360 segments designed to help her with her classroom management skills, lesson plans, and effective teaching strategies. On June 3, 2010, Dickens recommended to Superintendent Gail McKenzie that Respondent's employment be terminated for failure to comply with the 90-day Corrective Action Plan, and her failure to perform her duties as an English teacher. The following items were identified as not being completed during the probationary period: failure to provide physician's notes when absent; Dr. Dickens' secretary was not contacted on days Respondent was absent; and the failure to complete the PD360 training. By letter dated July 15, 2010, Respondent was informed that the Superintendent would recommend her termination because Vann had "failed to correct [her] performance deficiencies, failed to complete [her] Professional Development Plan, and that there is 'just cause' for [her] termination pursuant to Section 1012.34, Florida Statutes."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED Polk County School Board enter a final order ratifying Vann's termination from further employment in Polk County Public Schools. DONE AND ENTERED this 21st day of December, 2010, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2010.
The Issue The issues in this case are whether Respondent satisfactorily corrected specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3) (d), Florida Statutes, and, if not, whether Respondent's employment should be terminated.
Findings Of Fact A. 1. One of the statutory duties of Petitioner Miami-Dade County School Board ("Board") is to evaluate the performance of every teacher employed in the Miami-Dade County School District ("District"), at least once per year. To accomplish this, the Board uses a personnel assessment system known as "PACES," which is an acronym for Professional Assessment and Comprehensive Evaluation System. PACES is the product of collective bargaining between the Board and the teachers' union, and it has been duly approved by the Florida Department of Education. 2. The Board's evaluation procedure begins with an observation of the subject teacher, conducted by an administrator trained in the use of PACES. On a score sheet called the Observation Form for Annual Evaluation ("OFAE"), the evaluator rates the teacher's performance on 44 independently dispositive "indicators." The only grades assignable to the respective indicators are "acceptable" and “unacceptable”; thus, the evaluator's decision, for each indicator, is binary: yes or no, thumbs up or thumbs down.! A negative mark on any one of the 44 indicators results in an overall performance evaluation of "unsatisfactory." For the teacher under observation, therefore, each indicator constitutes, in effect, a pass/fail test, with his or her job hanging in the balance. 3. If the teacher passes all 44 of the independently dispositive indicators, then the teacher's performance is rated "setisfactory” and the evaluative process is complete. If, on the other hand, the teacher is given a failing grade on one or more of the 44 indicators and hence adjudged an unsatisfactory performer, then the initial observation is deemed to be "not of record" (i.e. inoperative) anda follow-up, “for the record" evaluation is scheduled to occur, upon notice to the affected teacher, about one month later. 4, In the meantime, the teacher is offered the assistance of a Professional Growth Team ("PGT"), a group of peers who, having received special training in PACES, are in a position to help the affected teacher correct performance deficiencies in advance of the follow-up evaluation. 5. The follow-up evaluation is conducted in the same manner as the initial "not of record" evaluation. If the teacher passes all 44 indicators, then his performance is deemed satisfactory and the evaluative process is complete. If he fails one or more of the indicators, however, then the teacher is placed on probation for a period of 90 calendar days (excluding vacations and holidays). The probation period is preceded by a formal Conference-for-the-Record ("CFR"), at which notice of the specific performance deficiencies is provided to the teacher. As well, the teacher is provided a PGT and given a Professional Improvement Plan ("PIP"), wherein particular remedial tasks, intended to help the teacher correct the noted performance deficiencies, are assigned. 6. During the performance probation, the teacher must be formally observed at least twice, by an evaluator using the OFBE. If, on any of these probationary observations, the teecher fails at least one indicator, then another PIP is prepared and offered. 7, The performance probation could end early, before 90 days have passed. This occurs when, during probation, the teacher is deemed to have mastered all the required indicators. At that point, should it come, the teacher receives a satisfactory performance rating, and the evaluative process is terminated. 8. ‘Within 14 days after the end of probation, assuming the process has not ended sooner as just described, a "confirmatory evaluation" is conducted, using the OFAE. The purpose of the confirmatory evaluation is to determine whether the noted performance deficiencies were corrected. If they were, then the teacher's performance is rated "satisfactory." If not, the principal then makes a recommendation to the superintendent whether to continue or terminate the teacher's employment. 9. As mentioned above, a PACES evaluation takes account of 44 crucial indicators. The indicators are organized under "components." The 44 outcome determinative indicators fall within 21 components, which are identified on the OFAE. These components are organized, in turn, under "domains," of which six are identified on the OFAE. 10. Each domain has been assigned a Roman numeral identifier: I through VI. The components are distinguished alphabetically: A, B, C, etc. The indicators are numbered using Arabic numerals. Each specific indicator is named according to the Roman numeral of its domain, the letter of its component, and its own Arabic number. Thus, for example, the first indicator under Component A of Domain I is referred to as "TL,A.1." 11. Notwithstanding the PACES taxonomy, the classifications of "domain" and "component" are useful only as a means of organizing the indicators. This is because a teacher does not pass or fail a performance evaluation at the domain level or at the component level; rather, he passes or fails at the indicator level, for, again, each of the 44 indicators is independently dispositive under PACES.” Thus, each of the determinative 44 indicators is of precisely equal weight. None is more important or less important than another.? B. 12. At all times material to this case, Respondent Leopoldo Mutis ("Mutis") was a teacher in the District. From 1999 until April 2004, when the Board suspended him pending termination of employment, Mutis taught middle school Spanish and ESOL at Key Biscayne K-8 Center ("Key Biscayne"). 13. During the 2003-04 school year, an evaluator observed Mutis in his classroom on five separate occasions, each time using the OFAE. The dates of these evaluations were, and the names of the respective evaluators are, as follows: Evaluation Date Evaluator October 23, 2003 Ana Maria Rasco, Principal, Key Biscayne November 17, 2003 Ms. Rasco January 13, 2004 Blanca Herrera-Torres, Assistant Principal, Key Biscayne February 18, 2004 Cathy Williams, Assistant Principal, Key Biscayne March 15, 2004 Ms. Rasco 14. The Board contends that Mutis failed ali five evaluations; the first, however, was deemed "not of record" and thus is relevant only insofar as it opened the door to the process that followed. The following table shows, for each evaluation for the record, the indicators that the respective evaluators thought Mutis had failed: Ti-lt-05 Gl-1s-08 02-18-06 G3-15-04 ; | | x | O1-13-04 [ TvEt_[ vat ver Ti-17-03 CU td 04 x | x [x 2-28-08 03-15-04 x 15. Because Ms. Rasco identified five performance deficiencies on November 17, 2003, Mutis was placed on 90-day performance probation, effective November 26, 2003, pursuant to the procedure described in detail above. Ms. Rasco held a CFR on November 25, 2003, to review with Mutis the identified deficiencies and explain the procedures relating to the 90-day probation. Following the CFR, Mutis was given written notice of unsatisfactory performance, in the form of a "Summary of Conference-For-The-Record And Professional Improvement Plan (PIP)," dated November 26, 2003 ("Summary"). In the Summary, Ms. Rasco charged Mutis with failure to satisfactorily perform the following PACES indicators: IV.A.3, IV.A.5, IV.B.2, VI.C.2, and VI.C.4. (These five indicators are highlighted vertically in the table above.) At the same time, Mutis was given a PIP, anc a PGT was assembled to provide assistance. 16. Following the confirmatory evaluation on March 15, 20C4, based on which Ms. Rasco identified 13 deficiencies as shown in the table above, Ms. Rasco notified the superintendent thet Mutis had failed to correct noted performance deficiencies during a 90-day probation and recommended that Mutis's employment be terminated. The superintendent accepted Ms. Rasco's recommendation and notified Mutis, by letter dated March 31, 2004, of his decision to recommend that the Board terminate Mutis's employment contract. On April 14, 2004, the Board voted to do just that. Cc. 17. In general terms, the ultimate issue in this case, according to Section 1012.33(3) (d)2.b., Florida Statutes, is whether Mutis corrected noted performance deficiencies as of the two-week period after the close of the 90 calendar days' probation. In view of the issue, the initial "of record" evaluation of November 17, 2003, is primarily relevant because it established the five "noted performance deficiencies" that Mutis needed to correct.’ Indeed, the Board cannot terminate Mutis's employment based on other deficiencies allegedly found during probation or at the confirmatory evaluation, but rather must focus exclusively on those five particular deficiencies which Mutis was given 90 calendar days to correct, for reasons that will be discussed below in the Conclusions of Law. Stated more precisely, then, the ultimate question in this case is whether any of the five specific deficiencies identified in the Summary provided to Mutis on November 26, 2003, persisted after the 90-day probation. 18. The two evaluations that were conducted during Mutis's probation (on January 13, 2004, and February 18, 2004) are of present interest mainly because they show Mutis making steady progress toward eliminating the noted deficiencies. By January 13, 2004, according to Ms. Herrera-Torres, Mutis had corrected three of the five noted deficiencies (Indicators IV.A.3, VI.C.2, and VI.C.4), leaving just two (Indicators IV.A.5 and V.B.2). When Ms. Williams evaluated Mutis on February 18, 2004, she found that the teacher had corrected four of the five noted performance deficiencies, failing him only on Indicator IV.A.5. 19. The evidence presented at hearing is insufficient, however, to support findings that Mutis was, in fact, deficient 10 with respect to (a) Indicators IV.A.5 and V.B.2 as determined by Ms. Herrera-Torres or (b) Indicator IV.A.5 as determined by Ms. Williams. As for the evaluation of January 13, 2004, it is found that the purpose of the learning task observed by Ms. Herrera-Torres that day was obviously to teach students rules relating to gender identification in the Spanish language. Thus, Indicator IV.A.5, which requires that the purpose or importance of learning tasks be clear to learners, was met. Regarding Indicator V.B.2, which requires that wait time be used as appropriate to enhance the development of thinking skills, Ms. Herrera-Torres gave no testimony at hearing; and, her cor.temporaneous written summary of Mutis's alleged deficiency in this area merely states, in conclusory fashion, that Mutis afforded students insufficient “wait time to think and develop answers to questions." A subjective opinion, devoid of facts, is not enough to justify an ultimate determination of insufficient performance in this regard. 20. As for the evaluation of February 18, 2004, it is found that Mutis informed the class observed by Ms. Williams that he intended to review a previous lesson or lessons. Having told his students that the purpose of the learning task was review, Mutis satisfied Indicator IV.A.5. 21. Thus, based on the evidence presented, it is found that Mutis's performance probation in connection with the five 11 noted deficiencies should have been terminated on January 14, 2004, or February 18, 2004, at the latest.° 22. As it happened, however, Mutis’s probation was not prematurely terminated, and Ms. Rasco performed a confirmatory evaluation on March 15, 2004. She found that Mutis had corrected two of the five noted performance deficiencies, giving Mutis a passing grade on Indicators IV.A.3 and VI.C.2. The remaining three deficiencies upon which termination could legally be based are identified in the table above with the "@" symbcl. It is to these three allegedly uncorrected deficiencies thet our attention now must turn. 23. The Board contends, based on Ms. Rasco's confirmatory evaluation of March 15, 2004, that Mutis was still, as of that date, failing satisfactorily to perform the following PACES indicators: IV.A.5: The purpose or importance of learning tasks is clear to learners. V.B.2: Wait time is used as appropriate to enhance the development of thinking skills. vI.C.4: Learners receive specific feedback when learning tasks and/or learning outcomes are completed. 24. The only descriptive evidence in the record regarding Muzis's performance on March 15, 2004——and hence the only evidence of historical fact upon which the undersigned can decide whether Mutis failed adequately to perform the three 12 indicators just mentioned—consists of Ms. Rasco's testimony, together with a memorandum dated March 15, 2004, that Ms. Rasco prepared for Assistant Superintendent Essie Pace. 25. At the final hearing, Ms. Rasco recounted what she had seen on March 14, 2004, when she observed Mutis in the classroom for 50 minutes: [1] This lesson—this lesson was atrocious. [2] First of all, Mr. Mutis walked into class three minutes late, the children were already seated in class. [3] When he walked in late, and I found this particularly offensive to the students because Mr. Mutis had been free for the two periods prior, this was fourth period, he had been free during second and third period so for him to have come in late was very difficult for me to understand. [4] Secondly, he was unprepared. He did not have his lesson plans readily available. He had to rummage through the stacks of papers on his desk to find his lesson plans. [5] This was a Monday morning, he had been out Friday, and he had proceeded to teach the lesson that the children had already done on Friday with the substitute. [6] Several students started to complain they could not understand why they had to repeat the lesson that they had already done on Friday, he was asking them to read some pages from a story, and they kept on explaining to him that they had already done it. He didn't explain to the children his rationale for doing—-for having them do it again, he just went through the lesson. 13 [7] There was an inordinate amount of off- task behavior. There was one student——and in this class there were maybe seven or eight students, this was a small class, there was one student who spent a long time catapulting a pen. There was another student who had birthday balloons attached to the back of her chair, and she was playing with the birthday balloons, fidgeting with the balloons for an extended period of time. [8] There was another student who was doing his writing assignment on a little, must have been a little five, maybe, a five by eight sheet of paper even though he told the students at the beginning of the lesson to take out their folders, this child was writing on a small piece of paper, and he didn’t address it. [9] Q. Did he address any of that off-task behavior? [10] A. He did not address any of these behaviors, he did not redirect the students at any point and time. [11] Again, the questioning techniques, he was asking questions without, again, any regard to the student responses, without probing. 12] Some students, I think, were speaking in Spanish, and, again, this was an English lesson, and yet they were never redirected to the English language. This one was just— 13] Q. They were in his class to learn English? [14] A. This was an English class. Students were not given any feedback. Sometimes he asked questions, if he didn't get a response he would answer, he would 14 answer the question himself and go to the next question. is Q. Could you tell whether he appeared to care about the class? 16 A. No, it's like he had given up. 17 Q. Do children react to that? 18 A. Children were definitely reacting [19] Q. His children were? 20} A. Yes, I mean, he was not getting any cooperation or engagement from the children. Final Hearing Transcript at 74-76 (numbering added) . 26. In her contemporaneous memorandum of March 15, 2004, which supplements and explains the foregoing testimony, Ms. Rasco stated in relevant part as follows: A chronology of observations and results for the above employee is provided for your review. Data indicate that this employee has not demonstrated corrective action. Of particular concern during the confirmatory observation in Seventh/Eighth Grades Language Arts Through ESOL was: II.A.1 The teacher entered the classroom three minutes after the bell signaling the beginning of fourth period had rung. The learners had already entered the classroom. The teacher did not have his lesson plans readily available and had to take time to locate them. There was no rationale for not being prepared since the teacher did not have students in his class during second or third period. 15 TII.B.4 At the beginning of the lesson when the teacher instructed the learners to turn to pages 162-163, three different learners told the teacher they had already read those pages with the substitute teacher on Friday. The learners did not understand why they had to repeat the assignment and the teacher did not give them any reason for repeating the lesson. V.A.1 When learners attempted to develop associations using their own experiences, the teacher curtailed this experience by allowing interruptions from other learners and letting several learners speak at the same time. V.C.1 No concepts that required critical analysis or problem-solving were developed. For example, the teacher asked, "Why is it important to learn about people who have difficulties in life?" He did not get a response and proceeded to ask, "Should everyone learn sign language?" V1.A.2 Learner engagement was not monitored. There were numerous instances of off-task behavior throughout the lesson which the teacher did not address. One learner was catapulting a pen, second learner was daydreaming and not following along as others read orally, a third learner was fidgeting with her birthday balloons, and a fourth learner was writing on a 3"x8" sheet of paper instead of her notebook as the teacher had initially instructed. The teacher never re-directed the off-task behaviors during the lesson. v1l.C.4 At various points throughout the lesson, several learners made comments and responded to questions in Spanish. At no time did the teacher redirect the responses to English, assist the learners in making their comments in English, or provide feedback. 16 27. To repeat for emphasis, any findings of historical fact concerning Mutis's performance during the confirmatory evaluation must be based on the foregoing evidence, for that is all the proof there is on the subject.® 28. Ms. Rasco did not explain how she had applied the PACES indicators to her classroom observations of Mutis to determine that the teacher's performance was not up to standards. D. 29. The three indicators at issue in this case, it will be seen upon close examination, are not so much standards upon which to base a judgment as factual conditions ("indicator- conditions") for which the evaluator is supposed to look. Ifa particular indicator-condition (e.g- the purpose of learning tasks is clear to learners) is found to exist, then the evaluator should award the teacher a passing grade of "acceptable" for that indicator (in this example, Indicator IV.A.5); if not, the grade should be "unacceptable." 30. But the indicator-conditions are not objective facts, equally perceivable by all observers; they are, rather, subjective facts, which come into being only when the evaluator puts historical (or observed) facts against external standards, using reason and logic to make qualitative judgments about what occurred. Subjective facts of this nature are sometimes called 17 "ultimate" facts, the answers to "mixed questions” of law and fact. 31. To illustrate this point, imagine that the class Ms. Rasco observed on March 15, 2004, had been videotaped from several different camera angles. The resulting tapes would constitute an accurate audio-visual record of what transpired in Mutis's class that day. Anyone later viewing the tapes would be able to make detailed and accurate findings of objective historical fact, including words spoken, actions taken, time spent on particular tasks, etc. But, without more than the videotapes themselves could provide, a viewer would be unable fairly to determine whether, for example, the purpose of learning tasks was "clear" to the students (Indicator IV.A.5),/ or whether “wait time" was used appropriately to enhance "thinking skills" (Indicator V.B.2).° This is because to make such determinations fairly, consistently, and in accordance with the rule of law requires the use of standards of decision, yardsticks against which to measure the perceptible reality captured on film. 32. Another term for standards of decision is "neutral principles." A neutral principle prescribes normative conduct in a way that permits fair judgments to be made consistently— that is, in this context, enables the reaching of similar results with respect to similarly performing teachers most of 18 the time. A neutral principle must not be either political or results oriented. It must be capable of being applied across-~- the-board, to all teachers in all evaluations. 33. In the unique milieu of PACES, neutral principles could take a variety of forms. One obvious form would be stendards of teacher conduct. Such standards might be defined, for example, with reference to the average competent teacher in the District (or school, or state, etc.). In an adjudicative proceeding such as this one, expert testimony might then be necessary to establish what the average competent teacher does, for example, to provide specific feedback upon the conclusion of learning tasks (Indicator VI.C.4) or to enhance the development of thinking skills through appropriate use of wait time (Indicator V.B.2).° 34. Other standards might be definitional. For example, definitions of terms such as "wait time” and "thinking skills" would facilitate the application of Indicator V.B.2. Still other standards might be framed as tests, e.g. a test for determining whether wait time enhances the development of thinking skills. 35. However the neutral principles are framed, at bottom there must be standards that describe what "satisfactory" performance of the indicators looks like, so that different people can agree, most of the time, that the indicator- 19 conditions are present or absent in a given situation-—and in other, similar situations. Without neutral principles to discipline the decision-maker, the indicators can be used as cover for almost any conclusion an evaluator (or Administrative Law Judge) might want to make. 36. In this case, the record is devoid of any persuasive evidence of neutral principles for use in determining, as a matter of ultimate fact, whether the conditions described in the three relevant indicators were extant in Mutis's classroom on March 15, 2004, or not. E. 37. In this de novo proceeding, the undersigned fact- finder is charged with the responsibility of determining independently, as a matter of ultimate fact, whether, as of the two-week period following probation, Mutis had corrected all of the performance deficiencies of which he was notified at the outset of probation. As mentioned, the only evidence of Mutis's post-probation teaching performance consists of Ms. Rasco's testimony about her observation of Mutis for 50 minutes on March 15, 2004, which was quoted above, along with her contemporaneous memorandum to Ms. Pace. 38. Ms. Rasco's contemporaneous memorandum sheds light on her testimony by clarifying which of the indicators was implicated by particular observations. Not much of this 20 evidence, as will be shown below, is relevant to Mutis's performance in relation to the three indicators on which termination could be based. (The discussion that follows refers to che numbered answers as quoted in paragraph 25 supra.) 39. Answers 2, 3, and 4 pertain to purported deficiencies with regard to Indicator II.A.1.*° Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 40. Answers 5 and 6 relate to alleged deficiencies with respect to Indicator III.B.4.*' Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 41. Answers 7, 8, and 10 relate to alleged deficiencies pertaining to Indicator VI.A.2.° Having been rated unsatisfactory in this area for the first time on March 15, 2004, Mutis cannot be fired for these alleged deficiencies. This testimony, therefore, is irrelevant. 42. Answers 16, 18, and 20 were not clearly associated with any particular deficiency. The undersigned finds this testimony unhelpful in determining whether Mutis was unsatisfactorily performing in the areas of Indicators IV.A.5, V.B.2, or VI.C.4. 21 43. Answer 1 is simply a conclusion, which the undersigned finds unhelpful as a basis for independent fact-finding. 44. This leaves Answers 12 and 14, which relate to alleged deficiencies in Indicator VI.C.4, which is a noted performance deficiency upon which termination could be based. The thrust of this testimony is that Mutis addressed some students in Spanish, rather than English. Even if Mutis did this, however, such does not implicate the Indicator in question, which is concerned with the provision of specific feedback upon the completion of learning tasks or outcomes, because Indicator VI.C.4 is silent as to the means of communication. Beyond that, Ms. Rasco offered the naked conclusion that Mutis failed to provide feedback, which merely tells the undersigned how to rule and her.ce is unhelpful. 45. In sum, the evidence is insufficient for the undersigned to find, as a matter of ultimate fact, that Mutis's performance on March 15, 2004, was deficient with regard to Indicators IV.A.5, V.B.2, and VI.C.4. 46. As important as the paucity of evidence establishing the objective historical facts concerning Mutis's performance on March 15, 2004, is the failure of proof regarding neutral principles for use in determining the existence or nonexistence of the relevant indicator-conditions. Even if the undersigned had a clear picture of what actually occurred in Mutis's 22 classroom that day, he has been provided no standards against which to measure Mutis's performance, to determine whether the indicator-conditions were met or not. 47. The absence of evidence of such standards is fatal to the Board's case. To make ultimate factual determinations without proof of neutral principles, 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 thus it would be unfair to apply them to Mutis.
Conclusions For Petitioner: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 For Respondent: Leopoldo Mutis, pro se 4001 North 67th Terrace Hollywood, Florida 33024
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Mutis of all charges brought against him in this preceeding; (b) providing that Mutis be immediately reinstated to the position from which he was suspended; and (c) awarding Mutis back salary, plus benefits, to the extent these accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. 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 15th day of December, 2004. 37
The Issue The issue in this case is whether a district school board is entitled to terminate the employment of a non-instructional employee whose performance is alleged to have been unsatisfactory.
Findings Of Fact At all times material, Ms. Dickerson was employed in the District as an education paraprofessional. For the 2000-01 school year, she was assigned to Meadow Park Elementary School (the "School"). That year, Ms. Dickerson worked under the supervision and direction of a special education teacher named Kimberly Vargas-Vila, whose half-dozen or so pupils, ranging in age from three to seven years, were children with autism. Ms. Dickerson was one of two paraprofessionals placed in Ms. Vargas-Vila’s classroom for the 2000-01 school year. In the discharge of her duties, Ms. Dickerson was required to feed students, help them in the toilet, assist the teacher in the classroom, assist children in play, watch them on the playground, make copies, and run errands for the teacher. Not long after the school year started, Ms. Vargas-Vila noticed that Ms. Dickerson resisted attempts by the other paraprofessional, who was a so-called "one-on-one" aide assigned to a specific student, to help Ms. Dickerson. Ms. Dickerson wanted to perform certain duties herself and often refused offers of assistance. Ms. Dickerson's unwillingness to share the work load was not initially disruptive but increasingly became so. In October 2000, another problem developed: Ms. Dickerson began to disobey Ms. Vargas-Vila's directions concerning the management of students' behavior. The teacher spoke with Ms. Dickerson about this issue, but Ms. Dickerson refused to discuss the matter with her. Instead, Ms. Dickerson sent a letter to the Board in which she unjustly accused Ms. Vargas-Vila of harassment. Unable on her own to resolve the problems she was having with Ms. Dickerson, Ms. Vargas-Vila sought the advice of the School's Principal, Elizabeth Cardozo. After conferring, they decided that the three of them (the principal, the teacher, and the paraprofessional) should meet together. Accordingly, a meeting was held between Ms. Dickerson, Ms. Vargas-Vila, and Ms. Cardozo on October 18, 2000. While the primary topic of discussion was Ms. Dickerson's allegation that Ms. Vargas-Vila had harassed her (which was groundless), other matters were discussed too, with the participants agreeing to reconvene if problems recurred. Despite this meeting on October 18, 2000, Ms. Vargas- Vila continued to have difficulties with Ms. Dickerson. Therefore, a few weeks later, on November 7, 2000, Ms. Vargas- Vila wrote a memorandum to Ms. Cardozo that related her concerns about Ms. Dickerson's ongoing failure to follow instructions relating to the behavior management techniques that she (the teacher) wanted to use with a particular student. In this memorandum, Ms. Vargas-Vila explained that she frequently had told Ms. Dickerson to ignore certain inappropriate behaviors in which the student in question was engaging, but Ms. Dickerson refused to comply. Rather than ignore the student, as directed, Ms. Dickerson would continue to talk and interact with the student. Ms. Vargas-Vila also had instructed that the student’s chair be placed slightly apart from the other students, but Ms. Dickerson, disobeying, had moved the student’s chair back towards the others in the group. Ms. Dickerson's defiance was causing friction in the classroom. When Ms. Vargas-Vila witnessed these insubordinate acts, she immediately discussed them with Ms. Dickerson, who either did not comment or expressed her opinion that the teacher's orders were inappropriate. Ms. Vargas-Vila's memorandum of November 7, 2000, reported as well that Ms. Dickerson continued to object when the teacher asked the other paraprofessional to handle duties that Ms. Dickerson felt were "her" tasks. As a result of Ms. Vargas-Vila's memorandum, a meeting was held on November 17, 2000, between Ms. Dickerson, Ms. Vargas-Vila, Ms. Cardozo, and a District official named John Stevens. The meeting was difficult because Ms. Dickerson became loud and angry, accusing the attendees, among other things, of plotting to violate her Constitutional rights. She also made the weird charge that Ms. Vargas-Vila had employed a "fake cough" to aggravate her in the classroom. Notwithstanding these impediments to productive discourse, Ms. Vargas-Vila reviewed "improvement strategies" with Ms. Dickerson, who said that she would follow this advice. Afterwards, Ms. Dickerson was provided a written summary of the November 17, 2000, conference, which specified the areas in which improvement was needed and the recommended improvement strategies. For a while after the November 17, 2000, meeting, Ms. Dickerson's performance improved. But before the month was out, Ms. Dickerson had resumed refusing to allow the other paraprofessional to perform certain duties, and she had begun once again to disregard the behavior management techniques that Ms. Vargas-Vila prescribed. These problems continued into the next calendar year. Throughout January 2001, Ms. Dickerson's performance- related problems persisted. Ms. Vargas-Vila talked specifically with Ms. Dickerson about the need for her to follow directions and allow other people to help out in the classroom, but Ms. Dickerson did not change her unsatisfactory behavior. As a result, another meeting with Ms. Cardozo was scheduled, for January 25, 2001. The January 25, 2001, meeting was attended by Ms. Cardozo, Ms. Vargas-Vila, and Ms. Dickerson. During the meeting, Ms. Dickerson was told that she had failed to follow the improvement strategies that had been recommended——and which she had agreed to implement——during the conference on November 17, 2000. Ms. Dickerson was notified that if she continued to disobey the teacher's directions, she would be subject to disciplinary action. Finally, more improvement strategies were discussed, and these were reduced to writing, as part of the principal's conference notes, a copy of which was provided to Ms. Dickerson on January 30, 2001. As of the January 25, 2001, meeting, Ms. Cardozo was convinced that Ms. Dickerson’s job performance was unsatisfactory and that her actions were interfering with the instructional process in the classroom. Consequently, Ms. Cardozo sought guidance from Diane Curcio-Greaves, a Professional Standards Specialist at the District's headquarters, in regard to the preparation of a performance evaluation of Ms. Dickerson. The conditions of Ms. Dickerson's employment were governed by a collective bargaining agreement called the Agreement Between the School District of Palm Beach County, Florida and the Association of Education Secretaries and Office Professionals, dated July 1, 1997 - June 30, 2000 (the "Union Contract"). The Union Contract forbade the recommendation of an employee for termination based upon an unsatisfactory evaluation unless that employee had been given at least 30 days to improve his or her performance. In view of this contractual provision, Ms. Curcio- Greaves and Ms. Cardozo decided that Ms. Dickerson would be afforded 30 days from the date she received an unsatisfactory performance evaluation within which to correct the identified deficiencies. On February 2, 2001, based on Ms. Vargas-Vila's input as well as her own observations, Ms. Cardozo recorded her assessment of Ms. Dickerson's performance on a Noninstructional Evaluation form used by the District. Ms. Cardozo rated Ms. Dickerson unsatisfactory under the categories of self motivation, adaptability to change, interpersonal effectiveness, and assignments (specifically, under the last heading, for failing to follow directions easily and effectively). Ms. Cardozo assigned Ms. Dickerson an overall rating of unsatisfactory. Ms. Cardozo, Ms. Curcio-Greaves, and Assistant Principal Diane Bell met with Ms. Dickerson on February 5, 2001, to discuss the unsatisfactory evaluation and to initiate a 30- day assistance plan. At this meeting, improvement strategies for each area in which her performance had been deemed unsatisfactory were recommended to Ms. Dickerson. These improvement strategies, together with a statement of the reasons why Ms. Dickerson's job performance was considered unsatisfactory, were set forth in a memorandum of assistance dated February 2, 2001, which Ms. Cardozo had prepared earlier. The evaluation and its attachments, including the memorandum of assistance, were presented to Ms. Dickerson on February 5, 2001. Ms. Dickerson acknowledged receipt of these documents, noting her disagreement with the contents and vowing to appeal "THIS FALSE PLOT!" In accordance with District policy and the Union Contract, Ms. Cardozo was responsible for monitoring Ms. Dickerson's progress during the 30-day assistance period and periodically meeting with Ms. Dickerson to review her performance and provide feedback. Ms. Cardozo scheduled several review conferences with Ms. Dickerson, to occur on Friday, February 16; Monday, February 26; and Monday, March 12, 2001. These dates were provided to Ms. Dickerson in a memorandum dated February 8, 2001, receipt of which was acknowledged by Ms. Dickerson that same day. The first review conference was held on February 20, 2001.1 Present were the same persons as on February 5: Ms. Cardozo, Ms. Bell, Ms. Curcio-Greaves, and Ms. Dickerson. Ms. Cardozo discussed each previously-identified area of deficiency with Ms. Dickerson and told Ms. Dickerson what was expected of her to correct these deficiencies, which persisted. Ms. Dickerson was not receptive to advice and indeed refused to acknowledge that her performance was unsatisfactory. Based upon Ms. Dickerson’s comments and the fact that she had not been following the implementation strategies described in the February 2, 2001, memorandum of assistance, Ms. Cardozo was of the opinion that as of February 20, 2001, Ms. Dickerson’s job performance had not improved. On February 22, 2001, Ms. Cardozo wrote a memorandum detailing the discussion that had taken place during the February 20, 2001, meeting. This memorandum specified the areas of Ms. Dickerson’s job performance that continued to be deficient, and spelled out the steps that Ms. Dickerson needed to take in order to improve. Ms. Cardozo gave Ms. Dickerson a copy of her memorandum on February 22, 2001, receipt of which was acknowledged by Ms. Dickerson. On February 23, 2001, Ms. Cardozo formally observed Ms. Dickerson in Ms. Vargas-Vila's classroom for one hour. She noticed that Ms. Dickerson continued to be performing unsatisfactorily in the area of interpersonal effectiveness. A few days later, on February 26, 2001, a second review meeting was held with Ms. Dickerson. In attendance were Ms. Cardozo, Ms. Curcio-Greaves, Ms. Bell, Jeanne Burdsall (a Manager in the District's Office of Professional Standards), and Ms. Dickerson. At this meeting, Ms. Dickerson informed the group that she had spoken with the "Assistant Superintendent" concerning her belief that people were trying to take her job away and give her a bad evaluation. Ms. Dickerson was reminded that on February 5, 2001, she had been advised about the grievance procedures available to union members. Ms. Dickerson was again informed of her right to contact a union representative if she wanted to file a grievance regarding her evaluation. It is evident that by the time of the February 26, 2001, meeting, Ms. Dickerson was not implementing previously- recommended improvement strategies and had no intention of doing so. She continued to deny having performance problems and stubbornly resisted attempts to help her improve. Ms. Dickerson repeated the now-familiar but utterly unsubstantiated accusation that Ms. Vargas-Vila and others were harassing her and plotting to take away her job. Ms. Dickerson's comments had become alarmingly irrational and paranoid. On March 6, 2001, Ms. Dickerson received a copy of Ms. Cardozo's detailed memorandum describing the February 26 meeting. Ms. Cardozo continued to hold the opinion that Ms. Dickerson had not improved her job performance to a satisfactory level. The next day, Ms. Dickerson refused to change a child's diaper at the direct request of Ms. Vargas-Vila, claiming that it was not her job and complaining that the teacher's directive constituted harassment. Ms. Vargas-Vila immediately brought this incident to Ms. Cardozo's attention. Within hours, the principal had notified Ms. Dickerson in writing that she wanted to meet with her the following day, March 8, 2001, in order to review the notes that Ms. Cardozo had made concerning her February 23, 2001, classroom evaluation of Ms. Dickerson. Later that afternoon, Ms. Dickerson appeared in Ms. Cardozo's office, ranting loudly that she was being harassed and asking why they needed to have a meeting. Ms. Cardozo advised Ms. Dickerson that the reason for the meeting was to go over the results of the February 23, 2001, observation. Ms. Dickerson alleged (again) that she could no longer do her job due to the supposed harassment. Ms. Cardozo asked Ms. Dickerson if she was refusing to meet with her, and Ms. Dickerson told her she was not. At that point, Ms. Cardozo told Ms. Dickerson that she would arrange to discuss the observation of February 23, 2001, at the upcoming assistance review meeting, scheduled for March 12, 2001. Thereupon, Ms. Dickerson left Ms. Cardozo’s office, only to return minutes later to tell Ms. Cardozo that she was sick and leaving for the day. In light of Ms. Dickerson's outburst and bizarre behavior, Ms. Cardozo began to worry that she or her staff might be in danger. Ms. Cardozo’s last meeting with Ms. Dickerson was on March 12, 2001. Ms. Cardozo gave Ms. Dickerson a copy of her memorandum of the observation that she had conducted on February 23, 2001. In the memorandum, Ms. Cardozo specifically commented on Ms. Dickerson's lack of interpersonal effectiveness. Ms. Cardozo also handed Ms. Dickerson a Noninstructional Evaluation form that she had completed on March 12, 2001, on which Ms. Dickerson was graded unsatisfactory in the areas of self motivation, adaptability to change, interpersonal effectiveness, and assignments——the same areas in which Ms. Dickerson's performance previously had been considered deficient. Overall, the evaluation was unsatisfactory. Because she had failed to correct the identified performance deficiencies within 30 days, Ms. Dickerson was informed via a letter from the Chief Personnel Officer, which she received on March 12, 2001, that effective March 13, 2001, she was being reassigned to her home with pay, pending the Board's next meeting on March 28, 2001, at which time action would be taken to dismiss her. By memorandum dated March 12, 2001, Ms. Cardozo notified the Director of Professional Standards that Ms. Dickerson had been given an unsatisfactory evaluation after the end of a 30-day assistance period. Based upon the unsatisfactory evaluation, Ms. Cardozo requested a District review to determine further action, up to and including termination of Ms. Dickerson's employment. In due course, pursuant to District policy, a competency hearing was convened before a committee of District employees, to review the evaluation process and Ms. Cardozo's recommendation that Ms. Dickerson's employment be terminated. The committee determined that all of the procedures for terminating a non-instructional employee for unsatisfactory performance had been followed, and it voted to uphold Ms. Cardozo's recommendation. The superintendent accepted the committee's recommendation, executing a petition on March 15, 2001, which urged the Board to suspend Ms. Dickerson without pay effective March 29, 2001, and to terminate her employment effective 15 days after the Board's decision or following an administrative hearing if timely requested. Although the record is not entirely clear, it appears that the Board suspended Ms. Dickerson without pay effective March 29, 2001, as recommended. Ultimate Factual Determination Ms. Dickerson's job performance was unsatisfactory, and she failed to correct the identified deficiencies within the 30-day period prescribed under the Union Contract, despite the provision of ample assistance to improve her performance.
The Issue Whether the School Board of Broward County, Florida (School Board) has just cause to terminate Respondent's employment based on the allegations set forth in the Administrative Complaint dated May 13, 2010.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. At all times material hereto, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract. At all times relevant to this proceeding, Respondent was assigned to Ashe Middle School where she taught reading and language arts. Respondent holds a Florida educational certificate that has both reading and gifted endorsements. During the time Respondent taught at Ashe Middle School, the school was considered a low performing school. There was a high level of student turnover and a relatively high number of foreign students who did not speak English. Respondent had an advanced reading class that read on grade level. Most of her other students read below grade level.1 Pursuant to a collective bargaining agreement (CBA) with Broward Teachers Union and applicable law, which will be discussed in the Conclusions of Law section of this Recommended Order, School Board has adopted a system to assess teachers known as Instructional Personnel Assessment System (IPAS). Subsection (F)(1)b of Article 18 of the CBA contains the following guiding principle: b. The School Board and BTU [Broward Teachers Union] acknowledge that the assessment process should recognize the professional nature of teaching and supervision. Educational research has not identified a single uni-dimensional construct called "effective teaching." Teachers must pursue a variety of models of effective teaching. It is recognized, moreover, that the educational environment is complex and variable and great weight should be placed on teacher judgment to guide the activities of student learning. Subsection F(2)(e) of Article 18 of the CBA requires that the principal, director, or his/her designee evaluate each employee at least once a year utilizing IPAS. Rating criteria are defined on the IPAS form in the following categories: Instructional Planning Lesson Management Lesson Presentation Student Performance Evaluation Communication Classroom Management Behavior Management Records Management Subject Matter Knowledge Other Professional Competencies The evaluator rates the employee as to each criterion and for overall performance. The rating can be "satisfactory", "needs improvement", or "unsatisfactory." Subsection F of Article 18 of the CBA describes IPAS. Pursuant to the CBA, the assessment system requires a teacher, whose performance has been deemed deficient in one or more areas by an appropriate school administrator, to be placed on a Performance Development Plan (PDP). A school administrator develops the plan and monitors the employee's progress in completing the plan. Subsection F(2)(m)2 of Article 18 of the CBA provides as follows as to the use and implementation of a PDP: Use and implementation of this plan requires identification of deficiencies, definition of strategies for improvement, definition of an assistance timeline, definition of expected outcomes, definition of possible consequences for failure to remediate, completion of assistance activities, and documentation. Subsection (F)(2)f of Article 18 of the CBA provides as follows: The following five (5) techniques are used to gather data on employee performance. Assessors use multiple techniques to understand actual performance and develop performance ratings. Informal classroom observations: Informal observations are made periodically by the principal or designee. A follow-up conference is not required subsequent to an informal classroom observation if performance is deemed satisfactory. Formal classroom observations: Formal observations are primarily initiated by the principal or designee. Employees may, however, request a formal observation. These are not less than 30 minutes in duration and are conducted by the principal, director or his/her designee. The 30 minute time period may be shortened by mutual agreement between the principal and the affected employee. All observations of employees for the purpose of assessment shall be conducted with the full knowledge of the employee. A conference is conducted after each formal observation. The FPMS [Florida Performance Measurement System] or other educationally sound observation instruments which may be used for formal observation.[sic] Observations in non-classroom situations: Principals use opportunities outside the classroom to observe the performance of employees. A follow-up conference is not required subsequent to this type of observation if performance is deemed satisfactory. Review of records and data: Principals review a variety of work samples prepared by the employee. These may include lesson plans, reports, grade card comments, discipline referral documents, etc. In addition, specific records or plans may be requested for review. A follow-up conference is not required if performance is deemed satisfactory. Review of performance portfolio: The principal or designee and the employee may mutually decide that a performance portfolio is needed to provide additional information for the completion of the assessment ratings. The design of a portfolio is determined by the principal and employee. A follow-up conference is not required if performance is deemed satisfactory. A teacher placed on a PDP is given 90 calendar days, excluding school holidays and vacations, to correct the identified performance deficiencies. If, at the end of the 90- day probation period, the performance of the employee remains at an unsatisfactory level for one or more of the assessment criteria, a rating of U (for unsatisfactory) is given. At that juncture, the administrator can extend the PDP period, or he/she can refer the matter to the Office of Professional Standards for further proceedings. Mr. Luciani was the principal and Mr. Muniz was an assistant principal at Ashe Middle School during the 2006-07 school year. On December 11, 2006, Mr. Muniz wrote a memo to Respondent. The memo is quoted verbatim because it targeted problems that continued throughout Respondent's tenure at Ashe Middle School. The memo is as follows: This correspondence is to document the last few week's [sic] events when it was determined that your job performance has been less than satisfactory in the following areas: Behavior Management-managing student behavior Records Management-management of data Communications Instructional Planning On December 7, while doing a classroom visit that lasted 31 minutes I noticed a lack of classroom management. It took almost seven minutes to get the class under control to start your lesson. While there were only 11 students in your room, yet, only five students were on task. You continued to do your lesson despite the disruptions. I am not sure if you were aware or just ignored the disruptions. In the last few weeks you have banished, kicked out, or attempted to kick out students everyday for almost twelve consecutive days. In the past Mr. Hart, Assistant Principal, and I have mentioned that the students should be accompanied by an escort or if you have a receiving teacher you should wait at the door until the child is situated. In at least five occasions your students have been caught wandering the halls because you have kicked them out. There have been many times while on hall duty that I noticed you kicking students out and the class has not yet started. This is unacceptable. You are responsible for the students in your class. When they are unescorted the possibility of injury exist [sic] due to your negligence. The students have not sat down and you attempt to remove them from class. This is also unacceptable. Prior to our recent data conference it was 12:15 in the afternoon and you requested to find out what data you needed at the conference. I directed you to Ms. J. Shakir[,] reading coach[,] who assisted you in securing minimal data for the conference. Please note that there had been four data presentations regarding preparation for the data conferences conducted by Mr. Fleisher and Ms. Lumpkin form c-net. Ms. Shakir and Ms. Pickney also conducted data disaggregation workshops in the previous weeks. While at the conference itself you appeared to know very little with regard to your student data. You were not familiar with your BMA results or the progress your individual students or classes had made. There was no attempt made at providing categorical breakdowns of students which needed prescriptive strategies to address their needs. The confrontational manner with which you speak to children is a direct factor in the lack of classroom management. Your lack of communication skills has led to referrals on many students which have led to major consequences for students after the referrals led to escalated verbal confrontations. During various grade level meetings, I have requested that all teachers provide me with emergency lesson plans every two weeks. To date I have not received any of these plans. Our expectations for each of the above listed concerns are: First and foremost, resolve the discipline problems in compliance with the policies of the school, rules of the District School Board and [sic] the State Board and Florida Statutes. Next, maintain consistency in all application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction. You must prepare for your students all day every day. Lesson plans must be meaningful and relevant to your content area. Studies show that students who are authentically engaged are less prone to deviant [sic] behavior. You must maintain complete order in your classroom. The Principles of Professional Conduct for the Education Profession in the State of Florida requires that the educator make reasonable efforts to protect the students from conditions harmful to learning, and/or to the students' mental, and/or physical health and/or safety. In the next few weeks you will be provided with assistance from behavior specialists, reading/curriculum coach and c-net personnel to assist you in meeting expectations. In February 2007 Respondent was placed on a PDP. Mr. Muniz monitored Respondent's progress and opined that she had not successfully completed the PDP. Mr. Luciani disagreed and instructed Mr. Muniz to give Respondent a satisfactory evaluation, which he did.2 Mr. Luciani was the principal and Mr. Hart was an assistant principal at Ashe Middle School during the 2007-08 and 2008-09 school years. Mr. Hart received a written complaint from a student that on October 1, 2008, Respondent told the student that the student's mother was unfit and did not know how to raise the student. In response to that complaint, on October 3, 2008, Mr. Hart issued Respondent a letter addressing the inappropriate manner in which she had addressed students, which included the following: On numerous occasions you have been counseled regarding your inappropriate comments/behavior towards students. This behavior includes embarrassing, disparaging, and/or awkward comments and/or actions. It has recently been brought to my attention that, once again, you have exhibited this behavior. * * * I am directing you to cease and desist all actions/comments of this nature immediately. You are to speak to students in a respectful, professional manner at all times. Mr. Hart, Respondent, and the student's parent met to discuss the alleged statements made by Respondent to the student. During that conference, Respondent became angry and left the meeting. Later, Mr. Hart met with Respondent to give her a copy of his letter dated October 3. Respondent took the letter and walked out of the meeting without signing the acknowledgment that she had received the letter. Respondent slammed the door as she left Mr. Hart's office. Mr. Hart received numerous complaints from parents and, as a result, transferred several students from Respondent's class to another class. On February 5, 2009, Mr. Hart observed Respondent arguing with a student in her classroom. He admonished her in writing to not be confrontational with students. Respondent's conduct on February 5, 2009, was inconsistent with Mr. Hart's admonishment to her on October 3, 2008. In an undated memorandum subsequent to January 20, 2009, Mr. Hart set forth the following issues that continued to be of concern despite his previous discussions with Respondent: Parent phone calls from her classroom Completing assignments Checking emails Inputting grades into Pinnacle (a computer database) Being prepared for instruction On February 18, 2009, Mr. Hart issued a written reprimand to Respondent for her failure to input student grades into Pinnacle. Respondent was placed on a PDP on February 13, 2009. Noted under the categories "Lesson Management" and "Lesson Presentation" were the failures to meet the following criteria: Orients students to classwork, specifies purposes of activities and relationship to the objectives; Prepares the classroom materials and equipment for the presentation of the lesson; Selects and uses appropriate instructional techniques including available materials and technology which support learning of the specific types of knowledge or skills; and Asks questions which are clear and require students to reflect before responding. During the PDP period that began February 13, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. On May 28, 2009, Mr. Hart completed an IPAS evaluation that rated Respondent unsatisfactory overall and as to the following five categories: "Lesson Management", "Lesson Presentation", "Student Performance Evaluation", "Classroom Management", and "Behavior Management." Mr. Hart rated Respondent satisfactory as to the remaining five categories. Mr. Hart placed Respondent on a second PDP that extended into the 2009-10 school year. At the end of the 2008-09 school year, Mr. Luciani retired. Before the start of the 2009-10 school year, Ms. Peebles became principal of Ashe Middle School. Respondent failed to enter grades and other data for students during the first marking period of the 2009-10 school year. That failure hindered the assessment of each student's needs and made it more difficult to monitor each student's progress. On November 19, 2009, Ms. Peebles conducted an IPAS evaluation for Respondent as to the PDP Mr. Hart had placed her on at the end of the 2008-09 school year. Ms. Peebles found Respondent to be deficient in the same five categories as Mr. Hart's evaluation, and she rated Respondent's overall performance as unsatisfactory. During the PDP period that began May 28, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. After her evaluation of November 19, 2009, Ms. Peebles had the options of referring Respondent to the Office of Professional Standards for further proceedings or placing Respondent on another PDP. Ms. Peebles elected to place Respondent on another PDP (the last PDP) because Ms. Peebles was new to the school and she wanted to give Respondent another chance to prove herself. At the conclusion of the last PDP, Ms. Peebles conducted an IPAS evaluation, which was dated April 19, 2010. Respondent remained unsatisfactory in the same five categories as the previous evaluations by Ms. Peebles and Mr. Hart, and her overall evaluation remained unsatisfactory. Throughout her employment at Ashe Middle School, Respondent exhibited a pattern of being absent on Fridays and Mondays. Respondent failed to correct that deficiency after having been counseled by administrators. During the 2009-10 school year, Respondent repeatedly failed to timely provide or leave appropriate lessons after having been counseled by administrators to do so. Respondent was instructed to give her lesson plans to Ms. Brown, the Reading Coach and Reading Department Chairperson, during that school year. Respondent never provided Ms. Brown a complete set of lesson plans the entire year. During the 2009-10 school year, Respondent repeatedly failed to demonstrate that she could control her classroom. She made multiple calls to security on nearly a daily basis and she continued to kick students out of class, which left them in the hallways, unsupervised. The Benchmark Assessment Test (BAT) is a county created test that is administered twice a year in September and again in November. The test is designed to measure the progress, if any, the student has made between the testing dates. The test is also used as a predictor for the Florida Comprehensive Achievement Test (FCAT). The vast majority of Respondent's student's test scores depict either no growth or a regression in all classes. A Mini-BAT is an assessment tool used to develop and provide effective lesson plans as well as student growth. The teacher is responsible for administering the assessment tool to her students and thereafter inputting the results in the computer database. During the 2009-10 school year, approximately half of Respondent's students either were not tested or had no score inputted after being tested. The DAR Assessment is a two-part standardized test designed to measure a student's ability at word recognition and all reading frequency. The test is administered twice a year, once in September and again in January. Ms. Brown administered the tests at Ashe Middle School during the 2009-10 school year. Ms. Brown scored the tests and gave the score results to Respondent, who was required to input the scores in the computer database. The Florida Department of Education (DOE) requires that 90 percent of the students complete the tests, which gives a 10 percent leeway for students who are absent on test days. Students are placed in reading classes based on their test result. The tests also measure each student's progress, or lack thereof, between the test dates. Forty-five percent of Respondent's students had no scores. Nineteen percent of those with scores had no gain. Mock FCATs are periodically administered to students following Mini-BATs. The Mock FCATs administered to Respondent's students during the 2009-10 school year were created by Ms. Brown. Ms. Brown utilized previous iterations of the FCAT that had been released by DOE in an effort to simulate the actual FCAT process in terms of difficulty and complexity. The tests are graded by computer and the scores are given to the teacher to input into the computer database. The results of the Mock FCATs are used to develop instructional plans for students. Sixty-three of Respondent's 111 students (or 57 percent) had no score inputted in the computer database. Nine students who did receive a score made no progress between the dates of the two tests. School Board entered into a contract with a consulting firm named Evans Newton, Inc. (ENI) to assist schools in need of improvement. In 2009-10 school year, ENI provided an assessment test that teachers were to use to monitor students' progress. Respondent administered the assessment test to her class, gave the results to Ms. Brown to score, and recorded the scores in the computer database after receiving the scored results from Ms. Brown. More than 40 percent of Respondent's students had no score recorded for the assessment test. Ms. Brown testified, credibly, that she returned all scored results to Respondent. The lack of a score for over 40 percent of her class can only be explained by Respondent's failure to do her job. Respondent either did not administer the test to those students, she did not give the test results to Ms. Brown to score, or she did not input the scores in the computer database after receiving the results from Ms. Brown. The FCAT Reading Learning Gain is the document through which DOE reports test score results to school districts. During the 2009-10 school year, DOE required a 60 percent learning gain. Respondent's students did not achieve that goal during that school year. For three of the four years she taught at Ashe Middle School, Respondent's classes failed to achieve their FCAT goals. The administrators at Ashe Middle School followed all applicable procedures in formulating and implementing the PDPs and IPASs at issue in this proceeding. After her IPAS evaluation of April 19, 2010, Ms. Peebles referred Respondent's case to the Office of Professional Standards, which resulted in the termination proceedings at issue.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this May 23, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2011.
The Issue The issues in this case are whether Respondent satisfactorily corrected specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3)(d), Florida Statutes, and, if not, whether Respondent's employment should be terminated.
Findings Of Fact One of the statutory duties of Petitioner Miami-Dade County School Board ("Board") is to evaluate the performance of every teacher employed in the Miami-Dade County School District ("District"), at least once per year. To accomplish this, the Board uses a personnel assessment system known as "PACES," which is an acronym for Professional Assessment and Comprehensive Evaluation System. PACES is the product of collective bargaining between the Board and the teachers' union, and it has been duly approved by the Florida Department of Education. The Board's evaluation procedure begins with an observation of the subject teacher, conducted by an administrator trained in the use of PACES. On a score sheet called the Observation Form for Annual Evaluation ("OFAE"), the evaluator rates the teacher's performance on 44 independently dispositive "indicators." The only grades assignable to the respective indicators are "acceptable" and "unacceptable"; thus, the evaluator's decision, for each indicator, is binary: yes or no, thumbs up or thumbs down.1 A negative mark on any one of the 44 indicators results in an overall performance evaluation of "unsatisfactory." For the teacher under observation, therefore, each indicator constitutes, in effect, a pass/fail test, with his or her job hanging in the balance. If the teacher passes all 44 of the independently dispositive indicators, then the teacher's performance is rated "satisfactory" and the evaluative process is complete. If, on the other hand, the teacher is given a failing grade on one or more of the 44 indicators and hence adjudged an unsatisfactory performer, then the initial observation is deemed to be "not of record" (i.e. inoperative) and a follow-up, "for the record" evaluation is scheduled to occur, upon notice to the affected teacher, about one month later. In the meantime, the teacher is offered the assistance of a Professional Growth Team ("PGT"), a group of peers who, having received special training in PACES, are in a position to help the affected teacher correct performance deficiencies in advance of the follow-up evaluation. The follow-up evaluation is conducted in the same manner as the initial "not of record" evaluation. If the teacher passes all 44 indicators, then his performance is deemed satisfactory and the evaluative process is complete. If he fails one or more of the indicators, however, then the teacher is placed on probation for a period of 90 calendar days (excluding vacations and holidays). The probation period is preceded by a formal Conference-for-the-Record ("CFR"), at which notice of the specific performance deficiencies is provided to the teacher. As well, the teacher is given a Professional Improvement Plan ("PIP"), wherein particular remedial tasks, intended to help the teacher correct the noted performance deficiencies, are assigned. During the performance probation, the teacher must be formally observed at least twice, by an evaluator using the OFAE. If, on any of these probationary observations, the teacher fails at least one indicator, then another PIP is prepared and offered. Within 14 days after the end of probation, a "confirmatory evaluation" is conducted, using the OFAE. The purpose of the confirmatory evaluation is to determine whether the noted performance deficiencies were corrected. If they were, then the teacher's performance is rated "satisfactory." If not, the principal then makes a recommendation to the superintendent whether to continue or terminate the teacher's employment. As mentioned above, a PACES evaluation takes account of 44 crucial indicators.2 The indicators are organized under "components." The 44 outcome determinative indicators fall within 21 components, which are identified on the OFAE. These components are organized, in turn, under "domains," of which six are identified on the OFAE. Each domain has been assigned a Roman numeral identifier: I through VI. The components are distinguished alphabetically: A, B, C, etc. The indicators are numbered using Arabic numerals. Each specific indicator is named according to the Roman numeral of its domain, the letter of its component, and its own Arabic number. Thus, for example, the first indicator under Component A of Domain I is referred to as "I.A.1." Notwithstanding the PACES taxonomy, the classifications of "domain" and "component" are useful only as a means of organizing the indicators. This is because a teacher does not pass or fail a performance evaluation at the domain level or at the component level; rather, he passes or fails at the indicator level, for, again, each of the 44 indicators is independently dispositive under PACES.3 Thus, each of the determinative 44 indicators is of precisely equal weight. None is more important or less important than another.4 B. At all times material to this case, Respondent Sergio H. Escalona ("Escalona") was a teacher in the District. From 2000 until May 19, 2004, when the Board suspended him pending termination of employment, Escalona was a science teacher at Miami Springs Senior High School ("Miami Springs"), a typical high school in the District. During the 2003-04 school year, an evaluator observed Escalona in his classroom on five separate occasions, each time using the OFAE. The dates of these evaluations were, and the names of the respective evaluators are, as follows: Evaluation Date Evaluator November 5, 2003 Carlos M. del Cuadro, Assistant Principal, Miami Springs December 2, 2003 Mr. del Cuadro January 16, 2004 Douglas P. Rodriguez, Principal, Miami Springs February 17, 2004 Deborah Carter, Assistant Principal, Miami Springs April 5, 2004 Mr. Rodriguez The Board contends that Escalona failed all five evaluations; the first, however, was deemed "not of record" and thus is relevant only insofar as it opened the door to the process that followed. The following table shows, for each evaluation (including the first), the indicators that the respective evaluators thought Escalona had failed: IA1 IA2 IB1 IB3 IE3 IF1 IF2 IIA1 IIA3 IIB2 IIB4 11-05-03 x x x x x x x 12-02-03 x 01-16-04 x x x 02-17-04 x x x x 04-05-04 x x x IID1 IID3 IID4 IIE1 IIE2 IIE5 IIIA1 IIIA3 IIIB1 IIIB3 IIIB4 11-05-03 x x x x x x 12-02-03 x x 01-16-04 x x 02-17-04 x 04-05-04 x x x x x IVA3 IVA 5 IVA6 IVB1 IVB2 IVB 3 IVC2 IVD1 IVD3 IVD6 IVE2 11-05-03 x x x x x x x x x 12-02-03 x x x 01-16-04 x x x x x x 02-17-04 x x x x x 04-05-04 x ? x ? x ? x x IVE4 VA1 VA4 VB1 VB2 VC1 VIA2 VIB1 VIB3 VIC2 VIC4 11-05-03 x x x x x x x x 12-02-03 x x x x 01-16-04 x x x x x x x 02-17-04 04-05-04 x ? ? ? x ? x x Because Mr. del Cuadro identified 10 performance deficiencies on December 2, 2003, Escalona was placed on performance probation, pursuant to the procedure described in detail above. Mr. Rodriguez held a CFR on December 9, 2004, to review with Escalona the identified deficiencies and explain the procedures relating to the 90-day probation. Following the CFR, Escalona was given written notice of unsatisfactory performance, in the form of a Summary of Conference-For-The-Record And Professional Improvement Plan (PIP), dated December 9, 2003 ("Summary"). In the Summary, Mr. Rodriguez charged Escalona with failure to satisfactorily perform the following PACES indicators: II.B.4, II.E.5, III.B.3, IV.A.5, IV.B.1, IV.D.1, V.A.1, V.A.4, V.B.1, and VI.A.2. (These 10 indicators are highlighted vertically in the table above.) At the same time, Escalona was given a PIP, and a PGT was assembled to provide assistance. Following the confirmatory evaluation on April 5, 2004, based on which Mr. Rodriguez identified 24 deficiencies as shown in the table above, Mr. Rodriguez notified the superintendent that Escalona had failed to correct noted performance deficiencies during a 90-day probation and recommended that Escalona's employment be terminated. The superintendent accepted Mr. Rodriguez's recommendation on April 12, 2004, and shortly thereafter notified Escalona of his decision to recommend that the Board terminate Escalona's employment contract. On May 19, 2004, the Board voted to do just that. C. Of the four evaluations "for the record," the two that were conducted during Escalona's probation (on January 16, 2004, and February 17, 2004) are presently relevant mainly to establish that the proper procedure was followed——a matter that is not genuinely disputed. The substance of these probationary evaluations cannot affect the outcome here because even if Escalona's performance had been perfect during probation, Mr. Rodriguez nevertheless found deficiencies during the post- probation, confirmatory evaluation, which is the only one probative of the dispositive question: Had Escalona corrected the noted performance deficiencies as of the two-week period after the close of the 90 calendar days' probation? In view of the ultimate issue, the evaluation of December 2, 2003, is primarily relevant because it established the 10 "noted performance deficiencies" that Escalona needed to correct. For reasons that will be discussed below in the Conclusions of Law, the Board cannot terminate Escalona's employment based on other deficiencies allegedly found during probation or at the confirmatory evaluation; rather, it must focus exclusively on those 10 particular deficiencies which Escalona was given 90 calendar days to correct. Thus, stated more precisely, the ultimate question in this case is whether any of the 10 specific deficiencies identified in the Summary provided to Escalona on December 9, 2003, persisted after the 90-day probation. As it happened, Mr. Rodriguez determined, as a result of the confirmatory evaluation on April 5, 2004, that Escalona had corrected three of the 10 noted performance deficiencies, for Mr. Rodriguez gave Escalona a passing grade on the indicators II.B.4, II.E.5, and III.B.3. The remaining seven deficiencies upon which termination could legally be based are identified in the table above with the "?" symbol. It is to these seven allegedly uncorrected deficiencies that our attention now must turn. The Board contends, based on Mr. Rodriguez's confirmatory evaluation of April 5, 2004, that Escalona was still, as of that date, failing satisfactorily to perform the following PACES indicators: 5: The purpose or importance of learning tasks is clear to learners. 1: Teaching and learning activities are appropriate for the complexity of the learning context. IV.D.1: Learners have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. V.A.1: Learners are actively engaged and/or involved in developing associations. 4: Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. 1: A variety of questions that enable thinking are asked and/or solicited. VI.A.2: Learner engagement and/or involvement during learning tasks is monitored. The only descriptive evidence in the record regarding Escalona's performance on April 5, 2004——and hence the only evidence of historical fact upon which the undersigned can decide whether Escalona failed adequately to perform the seven indicators just mentioned——consists of Mr. Rodriguez's testimony. Mr. Rodriguez, who had observed Escalona in the classroom for 50 minutes that day, recounted at final hearing what he had seen as follows: Again, there were students that were simply not engaged at all in learning. For example, there was a student that put his head down at a particular time. He slept for about fifteen minutes. Mr. Escalona never addressed the student, never redirected the learning, never tried to engage that student. Overall the students continued to pass notes in class. The students simply——there was really no plan at all. That was get up, give a lecture. Kids were not paying attention. No redirection for student learning. Questions again very basic. Most of the questions had no response from the students. And [they] just seemed very disinterested, the students did, and the lesson was just not acceptable. Final Hearing Transcript at 103-04. To repeat for emphasis, any findings of historical fact concerning Escalona's performance during the confirmatory evaluation must be based on the foregoing testimony, for that is all the evidence there is on the subject.5 Mr. Rodriguez did not explain how he had applied the seven indicators quoted above to his classroom observations of Escalona to determine that the teacher's performance was not up to standards. D. The seven indicators at issue in this case, it will be seen upon close examination, are not standards upon which to base a judgment, but rather factual conditions ("indicator- conditions") for which the evaluator is supposed to look. If a particular indicator-condition (e.g. the purpose of learning tasks is clear to learners) is found to exist, then the evaluator should award the teacher a passing grade of "acceptable" for that indicator (in this example, Indicator IV.A.5); if not, the grade should be "unacceptable." The indicator-conditions are plainly not objective historical facts; they are, rather, subjective facts, which come into being only when the evaluator puts historical facts against external standards, using reason and logic to make qualitative judgments about what occurred. Subjective facts of this nature are sometimes called "ultimate" facts, the answers to "mixed questions" of law and fact. To illustrate this point, imagine that the class Mr. Rodriguez observed on April 5, 2004, had been videotaped from several different camera angles. The resulting tapes would constitute an accurate audio-visual record of what transpired in Escalona's class that day. Anyone later viewing the tapes would be able to make detailed and accurate findings of objective historical fact, including words spoken, actions taken, time spent on particular tasks, etc. But, without more than the videotapes themselves could provide, a viewer would be unable fairly to determine whether, for example, the "[t]eaching and learning activities [had been] appropriate for the complexity of the learning context" (Indicator IV.B.1), or whether the questions asked adequately "enable[d] thinking" (Indicator V.B.1).6 This is because to make such determinations fairly, consistently, and in accordance with the rule of law requires the use of standards of decision, yardsticks against which to measure the perceptible reality captured on film. Another term for standards of decision is "neutral principles." A neutral principle prescribes normative conduct in a way that permits fair judgments to be made consistently—— that is, in this context, enables the reaching of similar results with respect to similarly performing teachers most of the time. A neutral principle must not be either political or results oriented. It must be capable of being applied across- the-board, to all teachers in all evaluations. In the unique milieu of PACES, neutral principles could take a variety of forms. One obvious form would be standards of teacher conduct. Such standards might be defined, for example, with reference to the average competent teacher in the District (or school, or state, etc.). In an adjudicative proceeding such as this one, expert testimony might then be necessary to establish what the average competent teacher does, for example, to monitor learner engagement and/or involvement during learning tasks (Indicator VI.A.2) or to create opportunities to learn at more than one cognitive level (Indicator IV.D.1).7 Other standards might be definitional. For example, to determine whether teaching and learning activities are appropriate (Indicator IV.B.1) practically demands a definition of the term "appropriate" for this context. Still other standards might be framed as tests, e.g. a test for determining whether a question enables thinking (Indicator V.B.1). However the neutral principles are framed, at bottom there must be standards that describe what "satisfactory" performance of the indicators looks like, so that different people can agree, most of the time, that the indicator- conditions are present or absent in a given situation——and in other, similar situations. Without neutral principles to discipline the decision-maker, the indicators can be used as cover for almost any conclusion an evaluator (or Administrative Law Judge) might want to make. In this case, the record is devoid of any persuasive evidence of neutral principles for use in determining, as a matter of ultimate fact, whether the conditions described in the seven relevant indicators were extant in Escalona's classroom on April 5, 2004, or not. E. In this de novo proceeding, the undersigned fact- finder is charged with the responsibility of determining independently, as a matter of ultimate fact, whether, as of the two-week period following probation, Escalona had corrected all of the performance deficiencies of which he was notified at the outset of probation. The only evidence of Escalona's post- probation teaching performance consists of Mr. Rogriguez's testimony about his observation of Escalona for 50 minutes on April 5, 2004, which was quoted above. Mr. Rodriguez's testimony gives the undersigned little to work with. His observations can be boiled down to four major points, none of which flatters Escalona: (a) Escalona lectured, and the students, who seemed disinterested, did not pay attention——some even passed notes; (b) Escalona asked "very basic" questions, most of which elicited "no response"; (c) one student slept for 15 minutes, and Escalona left him alone; (d) the lesson was "just not acceptable." On inspection, these points are much less helpful than they might at first blush appear. One of them——point (d)——is merely a conclusion which invades the undersigned's province as the fact-finder; accordingly, it has been given practically no weight. The only facts offered in support of the conclusions, in point (a), that the students "seemed" disinterested and were "not paying attention" to Escalona's lecture is the testimony that some students passed notes, and some (many?) did not answer the teacher's questions. But this is a rather thin foundation upon which to rest a conclusion that the students were bored because Escalona's teaching was poor. And even if they were (or looked) bored, is it not fairly common for teenaged high-school students to be (or appear) bored in school, for reasons unrelated to the teacher's performance? There is no evidence whatsoever that student boredom (or note passing or non- responsiveness) features only in the classrooms of poorly performing teachers. As for the supposedly "basic" nature of Escalona's questions, see point (b), the undersigned cannot give Mr. Rodriguez's testimony much weight, because there is no evidence as to what the questions actually were or why they were so very basic. Finally, regarding point (c), the fact that a student slept during class is, to be sure, somewhat damaging to Escalona, inasmuch as students should not generally be napping in class, but without additional information about the student (who might have been sick, for all the undersigned knows) and the surrounding circumstances the undersigned is not persuaded that the sleeping student is res ipsa loquitur on the quality of of Escalona's teaching performance. There is certainly no evidence that students doze only in the bad teachers' classes. More important, however, than the paucity of evidence establishing the objective historical facts concerning Escalona's performance on April 5, 2004, is the failure of proof regarding neutral principles for use in determining the existence or nonexistence of the relevant indicator-conditions. Even if the undersigned had a clear picture of what actually occurred in Escalona's classroom that day, which he lacks, he has been provided no standards against which to measure Escalona's performance, to determine whether the indicator- conditions were met or not. The absence of evidence of such standards is fatal to the Board's case. To make ultimate factual determinations without proof of neutral principles, 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 Escalona.
Conclusions The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 1012.34(3)(d)2.b.(II), Florida Statutes. When a teacher contests a superintendent's recommendation of dismissal, as here, the ensuing hearing must be conducted "in accordance with chapter 120." See § 1012.34(3)(d)2.b.(II), Fla. Stat. A "chapter 120 proceeding [entails] a hearing de novo intended to 'formulate final agency action, not to review action taken earlier and preliminarily.'" Young v. Department of Community Affairs, 625 So. 2d 831, 833 (Fla. 1993)(quoting McDonald v. Department of Banking & Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977)). Thus, the Board's burden in this case was not merely to persuade the undersigned that the evaluators sincerely believed, after conducting a legally sufficient assessment, that Young's performance was deficient, nor even to persuade the undersigned that the evaluators' judgment was factually and legally tenable. Rather, the Board's burden was to persuade the undersigned himself to find, independently, that Young's performance was deficient. Because this case is a proceeding to terminate a teacher's employment and does not involve the loss of a license or certification, the Board was required to prove the alleged grounds for Escalona's dismissal by a preponderance of the evidence. McNeill v. Pinellas County School Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Bd. of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Bd. of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990). B. Section 1012.34, Florida Statutes, which governs the process for evaluating teachers, provides in full as follows: 1012.34 Assessment procedures and criteria.-- For the purpose of improving the quality of instructional, administrative, and supervisory services in the public schools of the state, the district school superintendent shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative, and supervisory personnel employed by the school district. The Department of Education must approve each district's instructional personnel assessment system. The following conditions must be considered in the design of the district's instructional personnel assessment system: The system must be designed to support district and school level improvement plans. The system must provide appropriate instruments, procedures, and criteria for continuous quality improvement of the professional skills of instructional personnel. The system must include a mechanism to give parents an opportunity to provide input into employee performance assessments when appropriate. In addition to addressing generic teaching competencies, districts must determine those teaching fields for which special procedures and criteria will be developed. Each district school board may establish a peer assistance process. The plan may provide a mechanism for assistance of persons who are placed on performance probation as well as offer assistance to other employees who request it. The district school board shall provide training programs that are based upon guidelines provided by the Department of Education to ensure that all individuals with evaluation responsibilities understand the proper use of the assessment criteria and procedures. The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate. Pursuant to this section, a school district's performance assessment is not limited to basing unsatisfactory performance of instructional personnel and school administrators upon student performance, but may include other criteria approved to assess instructional personnel and school administrators' performance, or any combination of student performance and other approved criteria. The procedures must comply with, but are not limited to, the following requirements: An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. The assessment must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee's performance. Student performance must be measured by state assessments required under s. 1008.22 and by local assessments for subjects and grade levels not measured by the state assessment program. The assessment criteria must include, but are not limited to, indicators that relate to the following: Performance of students. Ability to maintain appropriate discipline. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field. Ability to plan and deliver instruction, including implementation of the rigorous reading requirement pursuant to s. 1003.415, when applicable, and the use of technology in the classroom. Ability to evaluate instructional needs. Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement. Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board. All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place. The individual responsible for supervising the employee must assess the employee's performance. The evaluator must submit a written report of the assessment to the district school superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than 10 days after the assessment takes place. The evaluator must discuss the written report of assessment with the employee. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file. If an employee is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements: 1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time. 2.a. If the employee holds a professional service contract as provided in s. 1012.33, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following the receipt of the notice of unsatisfactory performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period. During the 90 calendar days, the employee who holds a professional service contract must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee who holds a professional service contract may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies. b. Within 14 days after the close of the 90 calendar days, the evaluator must assess whether the performance deficiencies have been corrected and forward a recommendation to the district school superintendent. Within 14 days after receiving the evaluator's recommendation, the district school superintendent must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the district school superintendent will recommend that the district school board continue or terminate his or her employment contract. If the employee wishes to contest the district school superintendent's recommendation, the employee must, within 15 days after receipt of the district school superintendent's recommendation, submit a written request for a hearing. The hearing shall be conducted at the district school board's election in accordance with one of the following procedures: A direct hearing conducted by the district school board within 60 days after receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. A majority vote of the membership of the district school board shall be required to sustain the district school superintendent's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days after receipt of the written appeal in accordance with chapter 120. The recommendation of the administrative law judge shall be made to the district school board. A majority vote of the membership of the district school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. The district school superintendent shall notify the department of any instructional personnel who receive two consecutive unsatisfactory evaluations and who have been given written notice by the district that their employment is being terminated or is not being renewed or that the district school board intends to terminate, or not renew, their employment. The department shall conduct an investigation to determine whether action shall be taken against the certificateholder pursuant to s. 1012.795(1)(b). The district school superintendent shall develop a mechanism for evaluating the effective use of assessment criteria and evaluation procedures by administrators who are assigned responsibility for evaluating the performance of instructional personnel. The use of the assessment and evaluation procedures shall be considered as part of the annual assessment of the administrator's performance. The system must include a mechanism to give parents and teachers an opportunity to provide input into the administrator's performance assessment, when appropriate. Nothing in this section shall be construed to grant a probationary employee a right to continued employment beyond the term of his or her contract. The district school board shall establish a procedure annually reviewing instructional personnel assessment systems to determine compliance with this section. All substantial revisions to an approved system must be reviewed and approved by the district school board before being used to assess instructional personnel. Upon request by a school district, the department shall provide assistance in developing, improving, or reviewing an assessment system. The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54, that establish uniform guidelines for the submission, review, and approval of district procedures for the annual assessment of instructional personnel and that include criteria for evaluating professional performance. (Underlining and italics added). Under Section 1012.34(3), school districts must establish a primarily student performance-based procedure (or system) for assessing the performance of teachers. In other words, the method of accomplishing the assessment must be tailored to meet the goal of forming evaluative judgments about teachers' performance based mainly on the performance of their students. In clear terms, then, the legislature has announced that the primary (though not exclusive)8 indicator of whether a teacher is doing a good job is the performance of his students. If a teacher's students are succeeding, then, whatever he is doing, the teacher is likely (though not necessarily) performing his duties satisfactorily. It is plainly the legislature's belief that if we do not know how the teacher's students are performing, then we cannot make a valid judgment as to whether the teacher is performing his duties satisfactorily.9 The statute further mandates that, in assessing teachers, indicators of student performance——which performance is assessed annually as specified in Section 1008.22——must be the primarily-used data. (In contrast, evaluators are permitted, but not required, to make use of peer reviews in assessing teacher performance.) Section 1008.22, which is referenced specifically in Section 1012.34(3)(a), requires that school districts participate in a statewide assessment program, the centerpiece of which is the Florida Comprehensive Assessment Test ("FCAT"). See § 1008.22(3), Fla. Stat. The FCAT is a standardized test that is administered annually to students in grades three through 10. Id. Section 1008.22 is not concerned only with the FCAT, however. Subsection (7), for example, provides as follows: (7) LOCAL ASSESSMENTS.--Measurement of the learning gains of students in all subjects and grade levels other than subjects and grade levels required for the state student achievement testing program is the responsibility of the school districts. Thus, the school districts are charged with developing their own local assessment tools, to fill in the gaps left open by the statewide FCAT testing program. Section 1008.22(5) provides additionally that "[s]tudent performance data shall be used in . . . evaluation of instructional personnel[.]" Section 1012.34(3)(a) prescribes two and only two permissible measures of student performance for use in evaluating teachers: (a) the statewide FCAT assessments and (b) the gap-filling local assessments, both of which measures are required under Section 1008.22. It is clear that Sections 1012.34(3) and 1008.22 have at least one subject in common, namely, student performance-based assessment of teachers. Being in pari materia in this regard, Sections 1012.34 and 1008.22 must be construed so as to further the common goal. See, e.g., Mehl v. State, 632 So. 2d 593, 595 (Fla. 1993)(separate statutory provisions that are in pari materia should be construed to express a unified legislative purpose); Lincoln v. Florida Parole Com'n, 643 So. 2d 668, 671 (Fla. 1st DCA 1994)(statutes on same subject and having same general purpose should be construed in pari materia). When the requirements of Section 1012.34(3) are read together with Section 1008.22, several conclusions are inescapable. First, FCAT scores must be the primary source of information used in evaluating any teacher who teaches an FCAT- covered subject to students in grades three through 10. Second, school districts must develop, and annually administer, local assessments for subjects and grade levels not measured by the FCAT. Third, student performance data derived from local assessments must be the primary source of information used in evaluating teachers whose subjects are not covered on the FCAT and/or whose students do not take the FCAT. The absence of evidence in the record concerning the performance of Escalona's students either on the FCAT or on local assessments, as appropriate, see endnote 5, supra, deprives the undersigned of information that the legislature has deemed essential to the evaluation of a teacher's performance. Having neither state nor local assessments to review, the undersigned cannot find that Escalona's performance was deficient in the first place, much less whether he corrected the alleged performance deficiencies in accordance with Section 1012.34(3)(d). Without such findings, the Board cannot dismiss Escalona for failure to correct noted performance deficiencies. C. It was stated in the Findings of Fact above that the Board can terminate Escalona's employment only if, based on an assessment of his performance as of the two-week period following the 90 calendar days of probation, the teacher had failed to correct the particular performance deficiencies of which he had been formally notified in writing prior to probation; other alleged deficiencies, whether observed during probation or thereafter, cannot be relied upon in support of a decision to dismiss Escalona. Standing behind this observation is Section 1012.34(3)(d), Florida Statutes. The pertinent statutory language instructs that a teacher whose performance has been deemed unsatisfactory must be provided a written "notice of unsatisfactory performance," which notice shall include a description of "such unsatisfactory performance" plus recommendations for improvement in the "specific areas of unsatisfactory performance." The statute then specifies that the teacher must be allowed 90 calendar days "following the receipt of the notice of unsatisfactory performance" to correct "the noted performance deficiencies." Clearly, the "noted performance deficiencies" are the specific areas of unsatisfactory performance described in the notice of unsatisfactory performance. Finally, the statute mandates that the teacher shall be assessed within two weeks after the end of probation to determine whether "the performance deficiencies" have been corrected. It is clear, again, that "the performance deficiencies" are "the noted performance deficiencies" described in the written notice of unsatisfactory performance. See § 1012.34(3)(d)1. & 2.a., Fla. Stat. (emphasis added). The reason why a decision to terminate a poorly performing teacher must be based solely on the specific performance deficiencies described in the pre-probation notice of unsatisfactory performance is plain: allowing the school district to rely on subsequently observed deficiencies would defeat the teacher's unambiguous statutory right to have 90 post-notice calendar days in which to correct the noted performance deficiencies that triggered probation in the first place. This case exemplifies the problem posed by post-notice deficiencies. The notice of unsatisfactory performance (the Summary) that gave rise to Escalona's probation, which was based on Mr. del Cuadro's evaluation of December 2, 2003, charged the teacher with 10 specific performance deficiencies. By February 17, 2004, when Ms. Carter formally observed Escalona for the last time before the end of probation, Escalona had corrected all but one (Indicator IV.A.5) of the noted performance deficiencies——suggesting that he had made significant improvement. Unfortunately for Escalona, however, Ms. Carter believed that the teacher had exhibited nine deficiencies besides the noted performance deficiencies, with the net result that, near the end of probation, Escalona still had 10 deficiencies. Of these nine post-notice deficiencies, four (Indicators I.F.1, I.F.2, II.A.1, and IV.B.3) were recorded for the first time ever on February 17, 2004. Obviously, Escalona was not given 90 days to correct these four alleged deficiencies. Yet another three of the post-notice deficiencies reported by Ms. Carter (Indicators I.A.1, IV.A.6, and IV.B.2) had not been seen since Mr. Cuadro's initial evaluation of November 5, 2003. This initial evaluation, being "not of record," cannot count as a notice of unsatisfactory performance to Escalona. Hence he was not given 90 days to correct these three alleged deficiencies. For that matter, the remaining two post-notice deficiencies alleged to exist on February 17, 2004—— Indicators II.D.4 and IV.A.3——had not been observed, post- notice, until January 16, 2004, which means that Escalona did not have 90 days to correct them, either. For the above reasons, when assessing whether, in fact, Escalona had corrected the noted performance deficiencies as of the two-week period following probation, the undersigned focused, as he was required to do, exclusively on the 10 deficiencies described in the Summary, seven of which were alleged not to have been timely corrected. Having determined as a matter of fact that the evidence was insufficient to prove these seven alleged deficiencies existed or persisted, it must be concluded that the Board has failed to carry its burden of establishing the alleged factual grounds for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Escalona of all charges brought against him in this proceeding; (b) providing that Escalona be immediately reinstated to the position from which he was suspended; and (c) awarding Escalona back salary, plus benefits, to the extent these accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. 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 23rd day of November, 2004.
The Issue The issue in this case is whether Petitioner, Monroe County School Board, has “just cause” to terminate the employment of Respondent, Maryeugene E. Dupper, as a teacher for Petitioner.
Findings Of Fact The Parties. Petitioner, Monroe County School Board (hereinafter referred to as the “School Board”), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Monroe County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Respondent, Maryeugene E. Dupper, has been a classroom teacher with the School Board since August 2000. She began her employment as a substitute teacher and was subsequently employed as a full-time teacher at Poinciana Elementary School (hereinafter referred to as “Poinciana”), where she worked with profoundly handicapped students. She remained at Poinciana through November 2006. Throughout her employment at Poinciana, Ms. Dupper received good performance evaluations, although they did decline over time. On November 17, 2006, Ms. Dupper transferred to Gerald Adams Elementary School (hereinafter referred to as “Gerald Adams”), where she taught a Pre-K Exceptional Student Education or ESE class for the first time. At the times pertinent to this proceeding, Ms. Dupper was employed as a teacher pursuant to a professional services contract. 2006-2007 School Year. From the beginning of her employment at Gerald Adams, Ms. Dupper evidenced difficulty implementing the curriculum in a meaningful way. In particular, Ann Herrin, Principal at Gerald Adams, whose testimony has been credited, found that Ms. Dupper was having a difficult time establishing the scope and sequence of lessons and effective classroom management techniques. Among the deficiencies Ms. Herrin found with Ms. Dupper’s performance was the lack of progress notes for her students. Ms. Dupper failed to keep any notes indicating that she had performed any formal evaluation of her students. When Ms. Herrin asked Ms. Dupper how she could tell whether her curriculum was successfully reaching each student, Ms. Dupper simply replied that “I am a teacher and I just know.” After conducting two formal observations and a number of informal observations of Ms. Dupper, Ms. Herrin, in her 2006- 2007 annual teacher evaluation concluded that Ms. Dupper “Needs Improvement” in Management of Student Conduct, Instruction Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Herring used a Teacher Annual Assessment Plan Comprehensive Assessment Form for this evaluation. Overall, Ms. Herrin rated Ms. Dupper as “Needs Improvement” noting that “Curriculum content is lacking – making the learning environment unacceptable and unmanageable.” Subsequent to Ms. Herrin’s evaluation of Ms. Dupper, Ms. Herrin issued a Professional Development Plan for Ms. Dupper dated May 30, 2007. Ms. Dupper, who had been provided assistance throughout the school year by Gerald Adams administrative staff, was offered guidance in the Professional Development Plan intended to improve her performance as a teacher. That guidance is accurately described in paragraph 9 of the School Board’s Proposed Recommended Order. At the beginning of the 2007-2008 school year, the School Board instituted a new curriculum for use by Pre-K teachers. That curriculum, the Galileo Curriculum (hereinafter referred to as “Galileo”), is a computer-based program which includes lessons plans and benchmarks and goals for teachers to use in assessing student performance. Although Galileo includes a means for teachers to keep track of student progress, Galileo is not a student evaluation instrument intended for use in “testing” student progress. 2007-2008 School Year. During the 2007-2008 school year, Ms. Dupper was observed on October 11, November 8, and December 18, 2007, and on March 20 and 26, and May 6 and 22, 2008. Despite efforts to provide Ms. Dupper with professional assistance and making several changes in the teacher’s aide assigned to assist her, Ms. Dupper’s performance remained inadequate. Ms. Dupper was provided with assistance by teachers at Gerald Adams, including a “mentor," and by the head of the Exceptional Student Education department and an Exceptional Student Education Program Specialist. Ms. Dupper was observed on one occasion by Ms. Herrin when every student in Ms. Dupper’s “learning center” left the area while she continued to “teach.” One student stood on a table dancing, uncorrected by Ms. Dupper. On two occasions, a student left Ms. Dupper’s classroom altogether and were taken back to Ms. Dupper’s classroom before she realized they were gone. On nine different occasions during the 2007-2008 school year, Ms. Herrin requested a discipline plan from Ms. Dupper. No plan was ever provided. Ms. Dupper’s use of Galileo was minimal during the 2007-2008 school year. The system contained a checklist, by domain or skill, which was intended for use by a teacher in determining whether each student was learning the listed skills. Ms. Dupper rarely used the system, however, only logging into the Galileo system 19 times. Nine of those times were on the same day and four were on another day. Other Pre-K teachers utilized Galileo an average of 100 times more than Ms. Dupper. Ms. Herrin’s 2007-2008 annual evaluation of Ms. Dupper, dated April 4, 2008, found that her performance had declined and was “Unsatisfactory.” Ms. Herrin found Ms. Dupper “Unsatisfactory” in Management of Student conduct, Instruction, Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Dupper’s performance in Professional Responsibilities also declined due to her failure to complete Individual Education Plans on time, incomplete and inaccurate progress notes, and her failure to follow suggestions for improvement. The 90-Day Probation Period. As a result of her continuing decline in performance, Ms. Dupper was informed on April 9, 2008, that she was being placed on a 90-day probation period pursuant to Section 1012.34, Florida Statutes. She was informed that her deficiencies included the inability to manage student conduct, lack of lesson planning, inadequate knowledge of subject matter, lack of student progress evaluation, and inadequate professional responsibility. Ms. Dupper was given suggestions for how to improve her deficiencies over the summer break, suggestions which Ms. Dupper did not follow. While on probation, Ms. Dupper was also offered an opportunity to transfer to another school, an offer which was not accepted. On June 6, 2008, at the request of Ms. Dupper’s union representative, a second annual evaluation was performed by Ms. Herrin. While Ms. Herrin found some improvement, she found that, overall, Ms. Dupper’s performance was “Unsatisfactory.” Ms. Dupper was on probation during the 2007-2008 school year a total of 62 days, excluding holidays and “professional days.” During the summer months between the 2007-2008 and 2008-2009 school years, Ms. Dupper, who was not teaching, failed to follow any of Ms. Herrin’s suggestions for personal improvement opportunities. The first day of school for the 2008-2009 school year and the commencement of the 90-day probation period was August 11, 2008. Ms. Herring formally observed Ms. Dupper during the third week of September 2008, and on October 2, 2008. Assistant Principal Willis observed Ms. Dupper on October 8, 2008. Ms. Dupper’s performance and use of Galileo continued to be unsatisfactory, despite continuing efforts of the administration staff to assist her, as more particularly and accurately described in paragraphs 30 through and including 35 of Petitioner’s Proposed Recommended Order. Additionally, Ms. Dupper continued to fail to prevent her very young students from leaving the classroom without her knowledge. Excluding non-school days, Ms. Dupper was given more than 120 days from the commencement of her probation period until her probation period was considered ended in October 2008. By the middle of October 2008, Ms. Herrin concluded that Ms. Dupper had not evidenced satisfactory improvement in her teaching skills. Ms. Herrin’s conclusions concerning Ms. Dupper’s unsatisfactory performance as a teacher, which were not contradicted, are credited. The Decision to Terminate Ms. Dupper’s Employment By letter dated October 30, 2008, Ms. Herrin recommended to Randy Acevedo, Superintendent of the Monroe County School District, that Mr. Acevedo review documentation concerning Ms. Dupper’s 90-day probation period and make a recommendation pursuant to Section 1012.33, Florida Statutes, concerning her continued employment. Ms. Herrin provided Mr. Acevedo with the following information for his review: Attached please find a copy of the professional development plan and this year’s observations conducted by Assistant Principal, Grace Willis and me. The remaining documentation for the 2007 and 2008 school years have been submitted to personnel. I have also attached the follow up documentation, the review of the 90-Day plan and the observations that outline the deficiencies that still remain. This teacher’s performance remains unsatisfactory. Petitioner’s Exhibit 7. Missing from the information provided for Mr. Acevedo’s consideration was any information concerning student performance assessed annually by state or local assessment. By letter dated November 14, 2008, Mr. Acevedo informed Ms. Dupper that he was going to recommend to the School Board at its December 16, 2008, meeting that her employment as a teacher be terminated. By letter dated November 18, 2008, Ms. Dupper requested an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge her anticipated termination of employment. The School Board accepted the Superintendent’s recommendation at its December 16, 2008, meeting, suspending Ms. Dupper without pay, pending a final determination of whether her employment should be terminated. Student Performance Assessment. The Florida legislature has specified in Section 1008.22, Florida Statutes, a “Student assessment program for public schools.” This assessment program is to be considered in evaluating student performance as part of a teacher’s evaluation. The assessment program, however, does not apply to Pre-K students. “FLICKRS” is a state assessment tool intended for use in evaluating Kindergarten students. FLICKRS allows schools to evaluate whether a Kindergarten student is actually ready for Kindergarten-level work. FLICKRS is not utilized by the School Board to evaluate the progress of Pre-K students. The School Board has not developed any means of annually assessing the performance of Pre-K students. As a consequence, the decision to terminate Ms. Dupper’s employment by the School Board was not based upon any annual assessment of her students’ performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order: (a) dismissing the charges of the Administrative Complaint; (b) providing that Ms. Dupper be immediately reinstated to the position from which she was terminated; and (c) awarding Ms. Dupper back salary, plus benefits, to the extent benefits accrued during her suspension, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of July, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 22nd day of July, 2009. COPIES FURNISHED: Scott Clinton Black, Esquire Vernis and Bowling of the Florida Keys, P.A. 81990 Overseas Highway, Third Floor Islamorada, Florida 33036 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Acevedo, Superintendent Monroe County School Board 241 Trumbo Road Key West, Florida 33040-6684 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
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
