Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is 45 years of age. He is married and has two children. In 1968, following his graduation from college, Respondent began his career as a classroom teacher with the Dade County School Board. He remained with the Board until 1974, when he went to work for the Xerox Corporation. Respondent was rehired by the Board during the 1987-88 school year and assigned to teach sixth grade at Highland Oaks Elementary School in North Miami Beach. Virginia Boone has been the Principal of Highland Oaks for the past 27 years. At all times material hereto, Barbara Cobb has been her Assistant Principal. Respondent was reassigned to the fifth grade at Highland Oaks at the beginning of the 1988-89 school year. He taught fifth grade for the remainder of his stay at Highland Oaks, which ended during the 1990-91 school year. As a fifth grade teacher at Highland Oaks during the 1988-89, 1989-90 and 1990-91 school years, Respondent was a member of a team consisting of four other fifth grade teachers: Terri Lynne, Arnold Pakula, Virginia Valdes and Betty Kravitz. Each member of the team had a home room class and was responsible for teaching math and language arts to the students in that class. In addition, each team member was assigned a special subject, such as health, science, social studies, maps/globes or spelling/handwriting, to teach to all of the fifth graders. All such instruction took place simultaneously in a large open area shared by the five fifth grade teachers, rather than in separate rooms. In accordance with the Board's Teacher Assessment and Development System (TADS), principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance. The categories of classroom performance that are assessed are preparation/planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. For the 1987-88 and 1988-89 school years, Respondent received an acceptable rating in all seven assessment categories on the TADS annual evaluations he received. There was a precipitous decline, however, in Respondent's overall performance, which began during the first half of the 1989-90 school year and continued the following school year until his suspension. Respondent's attendance was irregular at best. He was frequently absent. When he was not absent, he often came late and left early. As a result, he did not participate with his team members in a number of early morning and late afternoon parent-teacher conferences that were held during his scheduled workday. Respondent did not adequately plan his lessons as directed. His failure to prepare sufficient written lesson plans was a particular problem because of his frequent absences. Without such plans, substitutes were unable to provide Respondent's students with any substantial continuity in instruction. Respondent also failed to grade and record his student's work and to prepare progress reports and report cards as directed. On a daily basis, Respondent would leave his class unattended without notifying any of his team members. Invariably, the students would become boisterous in Respondent's absence and disrupt the instruction that was taking place in the other fifth grade classes. Very little instruction occurred in Respondent's classroom. He appeared more interested in amusing his students with his antics than in teaching them. He sang, danced, told jokes, balanced boxes on his head, hung bags from his ears, made guttural noises and engaged in other childish behavior unbecoming a teacher. The laughter these antics generated made it difficult for the students in the other fifth grade classes to learn. Respondent regularly ate in the classroom in front of his students when he was supposed to be instructing them, notwithstanding that such conduct was clearly prohibited. To make matters worse, he often did not clean up after eating. At times, Respondent fell asleep in class and had to be awakened by his students. Although it was his responsibility to do so, Respondent frequently failed to pick up his students in a timely manner from their physical education, art and music classes which were held in areas of the school outside the fifth grade pod. Respondent's dereliction of his responsibilities placed an additional burden on the other fifth grade teachers. They tried to offer him advice and counsel, but Respondent was not receptive. Principal Boone and Assistant Principal Cobb, who received complaints about Respondent from his team members and from the parents of his students, also met with Respondent in an effort to make him a more productive member of the fifth grade team. During these meetings, they reminded Respondent of what was required of him as a teacher at Highland Oaks. Respondent, however, defied their directives and continued to act irresponsibly. Among the conferences that Boone had with Respondent was one held on October 26, 1989. Cobb, as well as Respondent's union steward, were also present. During this conference, Boone specifically directed Respondent to record for each of his students a minimum a three grades per week per subject, to prepare appropriate lesson plans for substitute teachers to use during Respondent's absences, to prepare daily lesson plans reflecting the day's activities, to ensure that his students were under supervision at all times and to participate in scheduled parent-teacher conferences. On December 1, 1989, Boone referred Respondent to the Board's Employee Assistance Program (EAP), which is a program designed to help employees who are having personal problems that are interfering with their work performance. On the form she submitted to the Coordinator of the EAP, Boone indicated that the referral was being made because of the following: "excessive absences;" "excessive tardiness;" "absences on Mondays and/or Fridays;" "changes in personal appearance;" "marked changes in mood;" "marked changes in activity level;" "frequent trips to restroom;" "poor judgment:" and "assignment failures" on Respondent's part. On the bottom of the form, Boone added the following comments: Mr. Long has not set the world on fire with his teaching since he came to our school, but he did receive acceptable evaluations. However, this year presents a different story. He has been absent 16 days out of 60 since 9/5/89, papers are not graded, tests are not given, lesson plans are not done and, if they are, very little. His discipline is poor, pals with students telling jokes. He has a long list of excuses for being late to work or not coming at all. I know I have given him every inch of rope I can. I must have someone who cares about the students to teach. On December 6, 1989, Respondent slept throughout a faculty meeting at which the Board's "Drug Free Workplace" rule was discussed. Following this meeting, Boone met with Respondent and reiterated the directives she had issued during their October 26, 1989, meeting. On the following day, Cobb attempted to conduct a formal observation of Respondent's classroom teaching. Cobb noted many deficiencies in Respondent's performance, including his failure to have a written lesson plan. She left after only sixteen minutes in the classroom. Instead of completing a formal post-observation report with prescriptions and handing it to Respondent, Cobb spoke with Respondent after the observation and informed him of those things that he needed to do to improve his performance. On December 12, 1989, Cobb reviewed Respondent's grade book. Her review revealed that Respondent still had not complied with the specific directives concerning grading that Boone had first issued Respondent on October 26, 1989, and had reiterated on December 6, 1989. Cobb therefore ordered Respondent to comply with these directives by January 2, 1990. Cobb reexamined Respondent's grade book on January 2, 1990. She found that the directed improvements had not been made by Respondent. On January 12, 1990, while in the cafeteria with his students, Respondent playfully held a straw to his nose as one would do if he was snorting cocaine. This incident was reported to Boone. It was further brought to Boone's attention that Respondent had been derelict in his responsibility to properly supervise his class that day. Boone reacted by relieving Respondent of his duties for the day. On June 18, 1990, a conference-for-the record was held. In attendance were Respondent, his union representative, Boone, Doretha Mingo, the Coordinating Principal for the Board's Region II and, as such, Boone's supervisor, and James Monroe, who, at the time, was the Director of the Board's Office of Professional Standards. Respondent was advised of the various complaints that had been made against him. Among the matters discussed was the January 12, 1990, incident with the straw, Respondent's repeatedly falling asleep in class and at meetings, his failure to properly supervise his students, his refusal to record student assessment data in accordance with established procedures and grading criteria, his lack of planning and preparation of written lesson plans, his erratic attendance and his unwillingness to attend scheduled conferences as required. Another subject of discussion was an incident that had occurred the month before during which Respondent had conducted a search, in contravention of Board policy, of two students on school property. Respondent had been aware of this Board policy at the time he conducted the search. At the June 18, 1990, conference-for-the-record, Respondent was directed by Mingo to return his grade book to Boone no later than the following day. Respondent did not comply with this directive. Directives were also issued by Monroe at the June 18, 1990, conference-for-the-record. He ordered Respondent to remain on alternate assignment at home, beginning the next day, and while on such assignment to be accessible by telephone during his seven-hour and five-minute workday between 8:15 a.m. and 3:20 p.m. Monroe further informed Respondent that Respondent was required to undergo a medical examination and drug test to determine his fitness to perform his assigned duties. On January 19, 1990, Monroe telephoned Respondent at home. He directed Respondent to report for his medical examination on January 22, 1990. He further instructed Respondent that, following the completion of the medical examination, Respondent was to remain at home during the remainder of the workday. On January 19, 1990, Respondent submitted to a drug test. The results were positive for cocaine. Respondent failed to appear for his medical examination on January 22, 1990. The examination was rescheduled for Saturday, January 27, 1990. On January 23, 1990, and again on January 24, 1990, Monroe made various attempts to reach Respondent at home by telephone during the workday. Respondent, however, was not at home and therefore Monroe was unable to contact him. Monroe finally got in touch with Respondent on January 25, 1990. He advised Respondent that Respondent was expected to report for his rescheduled medical examination on January 27, 1990, and to remain at home by the telephone during the rest of the workday. He further informed Respondent that he considered Respondent to have been insubordinate and that any further acts of noncompliance on Respondent's part would be deemed gross insubordination and result in a recommendation that Respondent's employment with the Board be terminated. On Monday, January 29, 1990, Monroe received a report from the physician who was to have examined Respondent that Respondent had not kept his January 27, 1990, appointment. That day, January 29, 1990, and the next, Monroe tried telephoning Respondent at home during Respondent's scheduled work hours, but was unable to reach him. 1/ Monroe tried again on January 31, 1991. This time he was successful in reaching Respondent. He ordered Respondent to report immediately to a new alternate assignment at the Board's Region II administrative office. While on this assignment, Respondent was to be supervised by Mingo. Respondent reported to the Region II administrative office later that day. He met with Mingo who provided him with the following written instructions: Effective January 31, 1990 you are directed to report to the Region II office for your assignment. Your work schedule is from 8:15 a.m. to 3:20 p.m. You are to sign in upon arrival and sign out when leaving in the Region II office. If you are going to be absent, you are to call 891-8263 and report your absence to Mrs. Escandell. You may take one hour for lunch between the hours of 11:30 a.m. to 1:00 p.m. You must be back from lunch by 1:00 p.m. You are not to make any personal calls. Requests to make emergency calls must be forwarded to Mrs. Escandell or any secretary in the front office during her absence. Any deviation from this schedule must be approved by Mrs. Mingo. During the Conference for the Record with you on January 18, 1990, you were directed to return your grade book to your school on the following day, January 19, 1990. As per your principal, Mrs. Boone, you have failed to provide the school with the official grade book for your class as of this date. You are directed to turn your grade book in to this writer [Mingo] effective February 1, 1990. Additionally, you will be supplied with a box of ungraded papers from your class which are to be corrected and grades recorded while you are assigned to this office. A schedule for completing this task will be discussed with you on February 1, 1990. Further, during this assignment, you are directed not to report to or call Highland Oaks Elementary School. If there is a need to communicate with anyone at the school, discuss the need with me. Respondent turned in his grade book the following day. That same day, Mingo established a deadline of February 6, 1992, for Respondent to complete his grading of the uncorrected papers with which he had been supplied. On February 5, 1990, Monroe conducted another conference-for-the- record with Respondent. As he had done during the previous conference-for-the-record, Monroe discussed with Respondent the provisions of the Code of Ethics of the Education Profession and Principles of Professional Conduct for the Education Profession in Florida and directed Respondent to comply with these provisions. He emphasized that it was imperative that Respondent maintain the respect and confidence of colleagues, students, parents and other members of the community, that he make every reasonable effort to protect his students from conditions harmful to learning and safety, and that he not expose students to unnecessary embarrassment or disparagement nor violate their legal rights. Respondent was placed on authorized medical leave effective February 5, through June 21, 1990, to enable him to receive treatment for his drug abuse problem. He was advised that his failure to pursue such treatment would be grounds for dismissal. At the time he was placed on authorized medical leave, Respondent had not completed the grading of the uncorrected papers he had been given. Shortly after being placed on authorized medical leave, Respondent was admitted to Mt. Sinai Hospital where he participated as an inpatient in the hospital's 28-day drug abuse treatment program. He remained in the program for the entire 28 day period. After leaving Mt. Sinai, Respondent went to a halfway house, where he stayed until late April, 1990. On April 26, 1990, Respondent enrolled as an inpatient in the drug abuse treatment program at Concept House. He transferred to Concept House's outpatient program three months later. As an outpatient, Respondent was required to meet with his counselor once a week and to attend group therapy sessions twice a week. On August 21, 1990, the Board's Office of Professional Standards received a sworn statement from Respondent's counselor at Concept House that Respondent was "in treatment and [was] employable at this time." That same day, Joyce Annunziata, Monroe's successor, gave Respondent clearance to return to work as a fifth grade classroom teacher at Highland Oaks. Respondent's continuing employment, however, was conditioned upon his remaining in treatment for his drug abuse problem. It became evident, following Respondent's return to Highland Oaks, that he had not mended his ways. From the outset, he was embroiled in controversy. During the teacher planning days before the opening of school, Respondent loudly argued, without reason, with team members over his spelling/handwriting assignment and declined to participate with them in planning for the upcoming school year. After school opened, Boone began receiving the same type of complaints about Respondent that she had received the previous year. There was no improvement on Respondent's part. If anything, his conduct and performance were worse than the 1989-90 school year. Particularly disturbing were the disparaging remarks Respondent directed to individual students during class in front of their classmates. On or about December 5 or 6, 1990, it was brought to Annunziata's attention that Respondent was no longer participating in the outpatient program at Concept House. He had been terminated from the program on December 3, 1990, because of noncompliance with his treatment plan. Respondent had started missing required individual and group counseling sessions in September. At the time of his termination from the program, he had not had any face-to-face contact with his counselor for at least 30 days. On December 6, 1990, Annunziata prepared a memorandum directed to Respondent which read as follows: At the conference in the Office of Professional Standards on August 21, 1990, you were cleared to return to full classroom duties at Highland Oaks Elementary School. This release was contingent upon your compliance with program requirements structured by the District's support agency. It has been brought to my attention that you are not complying with program requirements and are thus jeopardizing your employment. Please be advised that if you do not contact the District's referral agency within forty-eight hours of receipt of this memorandum and prepare to contract with the District to participate in a structured program, this office will pursue disciplinary measures. By copy of this memorandum, Ms. Boone is advised to provide to OPS all documentation relating to your performance during the 1990-91 school year. Future noncompliance with program directives will be considered an exhaustion of assistance and engender district action. Respondent received the memorandum on December 28, 1990. On or about December 17, 1990, Respondent's behavior was such that he had to be relieved of his duties for the day. He sang and danced in the cafeteria during lunchtime and slept in the classroom when he was supposed to be teaching, despite a student's attempt to wake him. When awake, he was unable to stand to conduct his class. Instead, he remained slumped in his seat. While seated, he sucked on a candy cane and his fingers making loud, exaggerated noises. He also swung his arms and kicked his legs in all directions. At the request of one of the other fifth grade teachers who reported that Respondent was "out of it," Cobb went to Respondent's classroom. After confirming that Respondent, who appeared glassy-eyed and unaware of his surroundings, was in no condition to continue teaching, she approached Respondent and told him that she wanted to speak with him in her office. In Cobb's office, Respondent told Cobb that he was tired because he had not gotten any sleep the night before. He then went on to tell Cobb a bizarre story about what had purportedly occurred at his house the prior evening. By all appearances, the story, which he repeated for Boone's benefit, was a product of Respondent's imagination. Respondent was supposed to exchange student progress reports with the other fifth grade teachers on December 17, 1990. He was unprepared to do so, however, on this date. On December 29, 1990, Respondent was arrested for possession of cocaine and drug paraphernalia. 2/ He remained in jail until January 18, 1990, when he was released on his own recognizance. On Sunday, January 6, 1991, the day before classes were to resume after the winter holiday break, Respondent telephoned Cobb at home. He told her that he would be absent because he had to go out of town to attend his father- in-law's funeral and that he did not know when he would be able to return. He did not mention anything about his arrest and incarceration, which was the real reason he would be unable to report to work the following day. By misrepresenting his situation to Cobb, Respondent was laying the groundwork to obtain sick leave benefits to which he was not entitled. While Board employees are entitled to paid sick leave for absences resulting from the illness or death of their father-in-law, they are not entitled to such leave for absences resulting from their own incarceration. On or about January 11, 1991, Annunziata reassigned Respondent from Highland Oaks to the Region II administrative office, where Respondent was to be under Mingo's supervision. January 22, 1991, was Respondent's first day back to work after his arrest. He reported to the Region II office and met with Mingo. Mingo gave him the same instructions, which are recited in paragraph 38 above, that she had given him the prior school year when he had been assigned to her office. On January 24, 1991, Annunziata conducted a conference-for-the record with Respondent to address issues relating to his continued employment with the Board. She informed Respondent during the conference that no final decision would be made until the matter was further reviewed. On Friday, February 8, 1991, Respondent left the Region II office for lunch at 11:30 a.m. He did not return to work that day. It was not until around 2:00 p.m., well after he was supposed to be back from his lunch break, that he first called the office to advise that he was having car trouble. Respondent was also absent the following workday, Monday, February 11, 1991. He telephoned the office to give notice of his absence that day. On February 12, 1991, Respondent neither reported to work, nor telephoned the office to give notice of his absence. Respondent returned to work on February 13, 1991. Upon his return, Mingo spoke with him. She reminded him of the directives she had previously given him regarding leave and attendance matters and made clear to Respondent that he was expected to comply with these directives. Furthermore, she indicated that Respondent would not be paid for the time he was away from the office on February 8, 1991, and February 12, 1991, because she considered his absences on these dates to have been unauthorized. Mingo was concerned not only with Respondent's noncompliance with leave and attendance reporting requirements, but with his sleeping while on duty as well. She therefore directed him, at around 9:10 a.m. on February 13, 1991, to submit to a drug test. She referred him to the urine collection site nearest the office and ordered him to report back to work after he had dropped off his urine sample. Respondent went to the collection site, 3/ but did not return to work that day as directed. Respondent reported to work the next workday. Mingo had another meeting with him. She expressed her displeasure with his having again failed to comply with her directives regarding leave and attendance matters. She once again repeated what those directives were. At around 11:05 a.m. that same day, February 14, 1991, Respondent left the office without authorization at approximately 11:05 a.m. He did not return until around 3:40 p.m. As Respondent was signing out for the day, Mingo confronted him about his unauthorized absence from the office that day. In response to Mingo's inquiry, Respondent told her that, after leaving the office that morning, he had spent the remainder of the day in his car in the parking lot outside the office. Mingo conducted a conference-for-the-record with Respondent on February 20, 1991. She discussed with him his failure to comply with the directives she had given him. During the conference, she reiterated those directives and ordered Respondent to follow them. A month later, on March 20, 1991, the Board took action to suspend Respondent and to initiate dismissal proceedings against him. At the time of his suspension, Respondent was serving under a continuing contract. The directives referenced above that Cobb, Boone, Mingo, Monroe and Annunziata gave Respondent during the 1989-90 and 1990-91 school years and which Respondent refused to obey were reasonable in nature, consistent with Board rules and policies and within these administrators' authority to issue. Respondent's failure to comply with these directives was the product of his unwillingness, rather than a lack of capacity, to do so. Although Respondent may not have received a TADS annual evaluation for the 1989-90 and 1990-91 school years, nor received at any time during these school years a TADS Post-Observation Report reflecting unacceptable performance, he was certainly put on notice by the administration through other means of his deficiencies and what he needed to do to cure these deficiencies. He was given a fair and reasonable opportunity to improve, but simply failed to take advantage of the opportunity. During the 1989-90 and 1990-91 school years, Respondent did not teach effectively and efficiently in accordance with the prescribed curriculum. As a result, his students suffered. They were deprived of the education to which they were entitled. Respondent displayed little or no concern for the educational development and potential of his students. Nor did he appear particularly interested in protecting them against conditions harmful to their safety and general well-being. Respondent's behavior in the classroom during the 1989-90 and 1990-91 school years was inconsistent with the standards of public conscience and good morals. It has brought him notoriety among his colleagues, students and their parents. Such notoriety can only serve to impair his effectiveness as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the School Board of Dade County issue a final order sustaining the charges of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency against Respondent and dismissing him from employment. RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of February, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1992.
The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the 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. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, 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 28th day of December, 2000.
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
The Issue Whether the Respondent's termination of employment as a guidance counselor should be upheld.
Findings Of Fact O'Connor is a long-term employee of the School Board. She supported herself while obtaining her master's degree in counselor education and was continuously employed by the School Board as a counselor since 1986. Over the course of her employment she has served successfully as a guidance counselor at three schools under five principals. During her tenure at Salaxy Elementary, she was honored as The Palm Beach Post's "Teacher of the Week." Up until 1997, O'Connor enjoyed a professional period she calls "the golden years." Her description of an idyllic, "almost like a private practice in an elementary school," is supported by the consistently glowing performance reviews she received throughout that period from all persons designated by the School Board to perform her annual evaluations. The golden years began to come to an end for O'Connor with the arrival of a new principal, Debra Johnson (Johnson). By the spring of the 1996-97 school year, relations between O'Connor and Johnson were strained. Johnson found it necessary to reprimand O'Connor for occasional tardiness, and on May 27, 1997, O'Connor received the first negative evaluation of her career. Johnson prepared the evaluation, which reflected unsatisfactory performance in two areas: "develops and maintains an accurate record keeping system"; and "adheres to and enforces school policies." The negative evaluations in these areas reflected Johnson's concern over O'Connor's failure to provide guidance and mediation logs as requested and her failure to submit certain pre- and post-test results which needed to be sent to the Department of Drug-Free Schools pursuant to grant requirements imposed upon the School Board. The 1997-98 School Year On March 2, 1998, O'Connor was appropriately reprimanded for making unethical statements to a student. The reprimand grew out of an incident in which O'Connor, angered by the fact that parents had called Johnson to complain about O'Connor's alleged failure to provide services to a student, confronted the student and made highly inappropriate comments, including that the student was trying to get [O'Connor] fired. On March 11, 1998, Johnson conducted her second formal evaluation of O'Connor. This time, three areas of concern were noted: "management of counseling sessions"; "demonstrates self control"; and "adheres to and enforces school policies." On April 20, 1998, O'Connor was scheduled to conduct a student mediators' training session between nine and ten a.m. While conducting rounds that day, Johnson found O'Connor playing solitaire on the computer in her room. Asked whether she had conducted the mediators' group, O'Connor lied to her principal. O'Connor's conduct on April 20 appropriately resulted in a three-day suspension without pay beginning August 12, 1998. The 1998-1999 School Year Throughout the period of time during which O'Connor's performance reviews began to deteriorate and disciplinary actions increased, O'Connor was experiencing medical problems which ultimately led her to request and receive a medical leave of absence for the fall, 1998 semester. O'Connor maintains that her medical difficulties, which included brain surgery in 1995, have no bearing on her job performance. O'Connor contends her work was unaffected by her medical issues, and there was no evidence to the contrary. During O'Connor's medical leave, Lisa Bentolila (Bentolila) was hired as an interim guidance counselor. Bentolila discovered serious record-keeping violations committed by O'Connor. Correcting the problems consumed the time of Bentolila and at least two supervisors. In January 1999, O'Connor returned to Orchard View. She continued her traditional counseling schedule, which included classroom guidance, and individual and small group counseling sessions. The evidence suggests that Johnson was not enthusiastic about O'Connor's return, but the evidence is not sufficient to establish O'Connor's theory that by this time, if not earlier, Johnson had conceived a "conspiracy" to fire O'Connor, and had enlisted other School Board personnel to assist her in achieving that goal. On Johnson's request, a formal observation on March 8, 1999, was conducted by Dr. Jeanne Burdsall (Burdsall), who watched O'Connor conduct a small group counseling session and teach a classroom guidance lesson. Burdsall prepared a report which noted five areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; and "action development and planning skills." The report also set forth an improvement strategy as to each area of concern. Burdsall observed a disturbing pattern of obliviousness by O'Connor to student behaviors and comments which cried out to be decisively dealt with, but were instead ignored by O'Connor, or met with inappropriate responses. Misconduct was a serious problem during Burdsall's observation periods. The misbehavior was exacerbated, and perhaps provoked, by O'Connor's inability to effectively manage the sessions by starting on time with clear and succinct goals, rules and expectations; by dealing with negative behavior at its inception; and by communicating and reinforcing appropriate messages keyed to the theme of the lesson, and drawing the students out on pertinent issues and then taking advantage of the information they provided to make the lesson meaningful to them. O'Connor failed to address several instances of students' fighting with one another, as well as student comments which required attention, such as one little girl who yelled out, "I'm crazy enough to jump off a roof." O'Connor would abruptly move from one discussion to another, making it impossible for the children to receive effective guidance counseling. On April 14, 1999, Johnson conducted another observation. On that day, her concerns included: "poor concept development"; "excessive teacher talk"; "failure to provide children an opportunity to respond"; and "failure to use age appropriate vocabulary". The combined observations of Burdsall and Johnson were reduced to a formal evaluation scoresheet on April 15, 1999. Six areas of concern were noted: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; "action development and planning skills"; and "develops and maintains an accurate record keeping system." This unsatisfactory evaluation resulted in O'Connor being placed on school-site performance probation beginning on April 15, 1999 and ending June 2, 1999. Under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, on-site performance probation affords 30 calendar days to improve performance to a satisfactory level, as well as improvement strategies geared to her specific deficiencies. On May 6, 1999, Dr Ann Lynch (Lynch), a professor at Florida Atlantic University in the Counselor Education Department, who has provided workshops and some observations of counselors for the Palm Beach County School District, conducted, at the School Board's expense, an extended one-on-one workshop with O'Connor on counseling skills covering three areas of concern: "development of rapport"; "interpersonal skills"; and "problem clarification." O'Connor was cooperative and receptive to numerous suggestions provided by Lynch during the workshop. However, at the next observation, conducted by Johnson on May 20, 1999, the principal saw no evidence that O'Connor had profited from the workshop; the deficiencies observed in April still remained. A similar conclusion was also reached by Sandra Cunningham (Cunningham) of the Department of Student Services, who also observed O'Connor on May 20, 1999. Cunningham's specific areas of concern were: "management of counseling sessions"; "development of rapport"; "problems/concern clarification"; and "interpersonal skills." In particular, Cunningham noted that while O'Connor was able to establish initial rapport with the students, she could not maintain it throughout the session. She had a hard time pacing the lesson; was unable to engage the students; ignored some of the students; did not respond with consistency to children's misconduct; and would be sarcastic to the children, in violation of the most basic precepts of counseling. Cunningham provided O'Connor with improvement strategies, including reviewing a group counseling book, specifically looking at hints for leading groups, and proposing that O'Connor videotape herself and review it with a colleague. On June 2, 1999, Johnson again observed O'Connor in a regular classroom session. During this session, O'Connor's failure to appropriately manage student misbehavior resulted in an ineffective counseling session for all the children. Throughout the various observations and conferences which made up the 30-day school-site assistance plan, O'Connor professed understanding of the criticisms leveled against her and stated that she had already corrected the problems, as observers would see for themselves at subsequent observations. Yet, the same deficiencies consistently appeared. O'Connor had an additional opportunity to improve during the summer months. She was provided with a schedule of summer remediation activities and reference materials reasonably calculated to help her improve her performance. O'Connor claimed she was unable to avail herself of any of these materials and activities due to transportation issues. Yet, the uncontroverted evidence is that O'Connor failed to contact Johnson to ask for assistance in obtaining these resources despite Johnson's numerous offers to help. The 1999-2000 School Year On September 3, 1999, a meeting was held with O'Connor regarding the status of the school site-assistance plan. The discussion included information concerning future observations and what kind of assistance would be required and provided. On September 10, 1999, Cunningham observed O'Connor teaching a third and a fourth grade classroom guidance lesson. In addition she observed O'Connor counseling an individual student. In a memorandum to Johnson summarizing the observations, Cunningham's comments were consistently positive. She was able to conclude that O'Connor's performance was at all times effective. Johnson was encouraged about O'Connor's future. On September 16, 1999, Johnson again observed O'Connor. At that time, the progress Cunningham had observed was not evident to the principal. The following day, she prepared a report to the Superintendent in which she indicated six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills”; and "develops and maintains an accurate record keeping system.” Based on this report, O'Connor was placed on a so- called 90-day plan. In fulfillment of the requirements of Section 231.29, Florida Statutes, and under the terms of O'Connor's contractual agreement with the School Board and her union contract rights, a 90-day plan affords time to improve performance to a satisfactory level, as well as improvement strategies geared to the employee's specific deficiencies. Employees subject to a 90-day plan have a right to request to be reassigned to another school. O'Connor timely exercised this right, but the request was denied by the School Board. In spite of, or perhaps because of, the difficulties O'Connor was having with her regular duties, Johnson elected to make a significant change in O'Connor's job duties with the adoption by the school of a so-called "intensive guidance model." The model, which was adopted without input from O'Connor, has a stated goal of assisting students to "learn appropriate social skills and conflict resolution skills in order to reduce their discipline concerns." Children assigned to the program had repeated issues regarding solving conflict, anger management, not being able to make friends or self-defeat. The program concept was to place these children together in a class to learn new skills in making friends, anger management, etc. There were approximately four to five children in such a class. Johnson assigned O'Connor to run this program four days a week during the fall of 1999. On the fifth day, she was to provide small-group or individual counseling. O'Connor viewed the program with great suspicion. She believed it was a glorified "in-school suspension" for the children, and, more fundamentally, an effort to place her in a situation in which she would fail. On October 14, 1999, Lynch observed O'Connor during a classroom guidance program of third and fourth grade classrooms. In the third grade classroom, the children were not consistently on task. It became obvious that O'Connor had prepared for the wrong session, mistakenly thinking she had been to that class the week before. In addition, O'Connor failed to establish rapport with the children at the expected level. Similar deficiencies were observed in the fourth grade class. O'Connor failed to advise students of the rules on confidentiality, together with their limitations, applicable to the class. This is a fundamental ethical duty of counselors, and Lynch had reviewed this requirement with O'Connor during her one-on-one workshop. Asked why she did not review these limitations with the children, O'Connor stated "she forgot to do it." Also on that day, Lynch observed O'Connor ask a teacher to see a child she had been counseling. The child came out to the hallway and stated several times that he wanted to go back in his classroom. After a couple of questions, O'Connor allowed the child to return to his classroom. No effective counseling took place during O'Connor's interaction with this child; moreover, it is generally inappropriate to conduct counseling sessions in a school hallway. On November 9, 1999, O'Connor received a written notice of verbal warning regarding her inappropriate and unprofessional language while on duty with students. Specifically, O'Connor contacted the school office over the public address system and stated in the presence of her students that she needed help or she was going to hit one of them; in addition, she used profanity in the presence of her students during that session. On November 19, 1999, Johnson observed Respondent in the classroom. During this observation, O'Connor failed to deliver a clear lesson, failed to give the students adequate opportunity to participate, and did not address resistance by the students. On December 13, 1999, Dr. Lynch again held a one-on- one group counseling session with O'Connor. Topics were geared to the now-familiar litany of complaints by observers and included: "working with the children"; "how to structure a group"; "what kinds of rules to establish"; "how to discuss confidentiality"; "what were the different skills needed"; "linking the children together"; "other techniques like role- playing"; and "age-appropriate activities and how to close a group." In addition, Lynch provided books and other materials on group counseling and showed O'Connor a video of what counselors actually do. As in the past, O'Connor was enthusiastic and receptive to the information. Cunningham returned to observe O'Connor on December 15 and 16, 1999. O'Connor's work on those days was in stark contrast to her largely good performance during Cunningham's observation on September 7, 1999. Cunningham's December observations included findings that O'Connor failed to clearly state the goals of the group; she used sarcasm and belittling remarks such as "That is why you are in this group;" she had trouble enforcing rules and monitoring behavior or in some instances, ignored behavior, resulting in many of the students being bored or acting out. On January 5 and 6, 2000, Burdsall observed O'Connor conducting a group counseling session and presenting a classroom guidance lesson. During these sessions, Burdsall did not observe effective guidance counseling. A particularly egregious lapse of professional judgment occurred when two first-grade boys came in to O'Connor's classroom. She turned to one of the boys and said "Your mother called, and she's getting a divorce." O'Connor said to the other boy,". . . your mother said that your family left Texas, and they left your father there 'cause he couldn't get along . . ." The boys looked at her, stunned. There is ample evidence that this was inappropriate and did not constitute competent guidance counseling. On January 19, 2000, Johnson again observed O'Connor and again saw failure to manage the classroom properly and to address misconduct. All observations were conducted by trained professionals in accordance with lawful standards, and were timely reviewed with O'Connor. O'Connor never disagreed with the substance of the evaluations and feedback she received. Rather, she would say such things as she was "correcting that behavior" or "Oh, yeah, wait 'til you see next time, I've already corrected that so when you come in, you're going to see this." However, there was never any consistent and significant improvement. By the time of the January 21, 2000, assistance review meeting, Johnson had appropriately concluded that O'Connor still exhibited significant deficiencies and would be recommended for termination. Notwithstanding Johnson's recommendation, on April 14, 2000, the parties entered into an agreement pursuant to which O'Connor released all legal claims against the School Board, and in exchange was provided an additional 90 days to remediate the noted deficiencies. During this second 90-day plan, O'Connor once again timely asserted her right to request a transfer to another school. Once again, the School Board refused the request, without explanation. For the second 90-day plan, O'Connor was given the opportunity to select some of the individuals who would observe her and provide assistance. The observation and assistance team for the second 90- day plan consisted of a diverse group of qualified professionals. Lynch remained and provided continuity. Johnson continued to participate until she was replaced as principal by Linda Nelson (Nelson); Susan Atherley, Ron Armstrong, and Dr. Gregory Brigman (Brigman) were added to the team and the new principal also had the opportunity to conduct her own observations. At the School Board's expense, Brigman provided a one day, one-on-one "supportive training" workshop again geared to the six deficiencies for which termination had initially been recommended. The 2000-2001 School Year On August 22, 2000, Brigman conducted the first observation of the new school year and again found that O'Connor failed to adopt the strategies provided to her during training, and was essentially operating at the same level she had since 1997. O'Connor's difficulties in managing her workload also continued into the new school year. On September 13, 2000, Nelson reprimanded O'Connor for failing to have her small groups in place. She was directed to prepare a list of the students needing small group services and to have all groups functioning immediately. In view of the growing consensus that O'Connor was unable to provide effective counseling, it is a mystery why the principal would insist that ineffective or inappropriate services be foisted upon the students most in need of competent professional help. However, this line of inquiry was not pursued by O'Connor in support of her theory that the School Board wanted to get rid of her either because of Johnson's personal animus, or because her medical needs, the substantial expense of which was at least partially borne by the School Board, caused her to be regarded as a liability. On September 28, 2000, O'Connor was again criticized for her record-keeping with a notice that she had failed to update certain legally mandated records known as "504 files." On September 28, 2000, Nelson conducted a formal annual personnel evaluation of O'Connor. Listing the now familiar six areas of concern: "management of counseling sessions"; "development of rapport"; "problem/concern clarification"; "interpersonal skills"; "action development and planning skills"; and "develops and maintains an accurate record keeping system," Nelson recommended that O'Connor's employment be terminated. Acting in accordance with Nelson's recommendation, the School Board voted on October 25, 2000, to suspend O'Connor without pay and to terminate her employment effective November 9, 2000.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board issue a final order terminating Leslie O'Connor's employment for unsatisfactory performance as set forth in the Administrative Complaint dated November 7, 2000. DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2001. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Glen J. Torcivia, Esquire 1800 Australian Avenue, South Suite 205 West Palm Beach, Florida 33409 Dr. H. Benjamin Marlin, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard Room C316 West Palm Beach, Florida 33406-5869 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent's teaching certificate should be disciplined by Petitioner, the Education Practices Commission and whether Respondent should be dismissed as an instructional employee from the Pinellas County School Board based on allegations set forth in the administrative complaint filed herein and the charges and amended notice of charges filed herein by the School Board by letters dated March 5 and July 8, 1992.
Findings Of Fact Respondent currently holds Florida teaching certificate No. 179606, covering the areas of administration and supervision, elementary education, french, spanish, special learning disabilities and varying exceptionalities. That certificate is valid through June 30, 1996. Respondent has been employed as a teacher by the Pinellas County School Board at Lealman Comprehensive Middle School (Lealman) and Tyrone Middle School (Tyrone). On November 5, 1976, Respondent received a letter of reprimand for striking a student with a belt. During various times in the 1978 and 1979 school year, Respondent appeared at work with alcohol on his breath which was noticed by administrators at Lealman. On April 30, 1987, Respondent received a letter of reprimand from Scotty East, principal at Lealman because of excessive absences and violation of school procedures. Respondent was advised to follow proper procedures for notifying the administration of his absence(s). Respondent was charged a personal day for the noted procedural infractions. During the 1986-87 school year, Pamela Coachman and Donna Strongoski were instructors at Lealman and worked with Respondent. Prior to and during the 1986-87 school year, Respondent made comments and inappropriate sexual advances to Pamela Coachman. Ms. Coachman rejected Respondent's advances. Respondent retaliated by making harassing and degrading comments such as calling her a "whore with champagne taste." Respondent's actions were offensive to Ms. Coachman. Respondent made inappropriate comments to Donna Strongoski about her appearance, the tone of her voice and her marital status. Specifically, from 1986-1988, Respondent questioned Strongoski's womanhood often telling her that she was "too strong to be a woman", that she had a voice like a man and questioned why she had never been married. Strongoski was angered by Respondent's comments. As a result of Respondent's comments to Strongoski and Coachman, they notified school administrators and district officials about his conduct. Nancy Zambeta, Director for Personnel Services, discussed the allegations with Respondent and advised him to refrain from making personal comments to colleagues and to avoid similar situations in the future. Coachman and Strongoski met with Respondent and cautioned him that they would not tolerate his behavior. Respondent received a memorandum from Lealman's principal advising him to refrain from similar behavior of a harassing nature. Respondent thereafter submitted his resignation but later rescinded it prior to the Board's acceptance. Respondent was permitted to return to employment as an annual contract teacher and was transferred to Tyrone. On March 7, 1988, Lois Beacham, assistant principal at Tyrone, observed Respondent acting in an incoherent manner and detected the odor of alcohol on his breath. Ms. Beacham requested a substitute for Respondent's class and later spoke to him about changing his behavior. Beacham advised Respondent to follow procedures to indicate absences in the future. On the same day, Tyrone's principal, Paul Brown, advised Respondent by letter not to arrive at work in an unprofessional condition (under the influence of alcohol). On January 3, 1989, Respondent requested a day off from work whereupon Principal Brown noticed that Respondent's speech was slurred and he detected an odor of alcohol on his breath. On January 4, 1989, Sandy Murray, secretary at Tyrone, encountered Respondent when he arrived at the office to pick up his paycheck. Ms. Murray noticed that the air "reeked of alcohol" around Respondent. On January 6, 1989, Steve Crosby, Director of Personnel Services for Petitioner School Board, met with Respondent to discuss allegations that Respondent reported to work under the influence of alcohol. Crosby warned Respondent that such conduct constituted poor judgment and misconduct in office and would not be tolerated by the Board. On January 25, 1989, Respondent entered into a stipulation with the Board agreeing to accept a three-day suspension without pay for reporting to work under the influence of alcohol. On April 17, 1989, Respondent encountered teachers Barbara Skatzka and Evelyn Villazon in a school hallway. Respondent improperly touched Ms. Skatzka's pants and commented that he had seen a lesbian who wore similar clothing. Respondent commented upon the fact that Ms. Skatzka was divorced, asked her if she was a lesbian and asked her if she had a man in her life. Such comments caused Ms. Skatzka to feel uncomfortable. On April 19, 1989, Charles Einsel, the Director of Personnel Services, met with Respondent to discuss the allegations. On April 25, 1989, School Superintendent Scott Rose issued a letter of reprimand to Respondent for the referenced unprofessional conduct. On June 7, 1989, Commissioner Castor filed an administrative complaint against Respondent. The complaint alleged several incidents including one that Respondent reported to work under the influence of alcohol, made improper comments to colleagues, used inappropriate corporal punishment and made improper comments to a student. On January 3, 1990, Commissioner Castor and Respondent entered into a settlement agreement to resolve the charges. The EPC accepted the settlement in its final order of February 26, 1990 (EPC Case No. 89-092-RT[PE4]). The agreement included the following provisions: Respondent received a letter of reprimand for the misconduct alleged. Respondent was placed on probation for three years. Respondent agreed to attend Alcoholics Anonymous and be subjected to random alcohol testing. Respondent agreed to undergo psychological evaluations. Respondent agreed to violate no law and to fully comply with all school rules, district school board regulations and rules of the State Board of Education. On February 4, 1990, Respondent was arrested in Pinellas County and charged with driving under the influence of alcohol. He was adjudicated guilty of the DUI charge on June 29, 1990. On February 16, 1990, Personnel Director Steve Crosby met with Respondent to discuss the arrest. Mr. Crosby subsequently issued a letter of reprimand to Respondent warning him that any future instance of poor professional judgment by him could result in his dismissal. On or about December 20, 1990, Commissioner Castor filed a second administrative complaint against Respondent. The complaint alleged that Respondent violated the terms of his EPC probation as a result of his DUI conviction. On May 7, 1991, Commissioner Castor and Respondent entered into a settlement agreement to resolve the charges. The EPC accepted the settlement on June 25, 1991. (Petitioner's Exhibit 5) The May 7, 1991 agreement included the following provisions: Respondent agreed to undergo psychological evaluations. Respondent agreed to complete two courses in the area of classroom management and techniques of instruction. Respondent agreed to submit to evaluation and counseling with a substance abuse program. Respondent was placed on probation for an additional three years to begin at the expiration of his current probation which, by its terms, ends March 3, 1993. Respondent agreed to violate no law and to fully comply with all school rules, district school board regulations and rules of the State Board of Education. During the 1990-91 school year, Kimberly Coleman worked as a teacher's aide in a class for emotionally handicapped (EH) students taught by Barbara Day. After one of the EH students was assigned to Respondent's class, Respondent approached Coleman to discuss the student although Ms. Day was the teacher who supervised that student's progress. Respondent often looked at Coleman in a sexually suggestive manner and, as a result, Coleman attempted to avoid contact with Respondent whenever possible. During the 1990-91 school year, Kenneth LeBrant, a teacher at Tyrone, while checking on plants that he planted under Respondent's classroom window, observed a student misbehave in Respondent's classroom whereupon LeBrant shouted at the student to "knock it off". At about the same time, Respondent entered his classroom, angrily belittled LeBrant and demanded that he leave his class. LeBrant felt embarrassed at being shouted at in the presence of students and returned to his classroom. Respondent later encountered LeBrant in the faculty lounge and attempted to continue to confront LeBrant in a threatening manner. Both Respondent and LeBrant received a reprimand from the principal about their conduct in the faculty lounge. During the 1990-91 school year, Respondent entered the teacher's lounge and called Larry Mann, a "judaist" in an angry manner. Respondent used profanity in his classroom during the 1991-92 school year. Specifically, on occasion he called his class a "bunch of motherfuckers" and "you white motherfuckers". On one occasion while students prepared to leave his class, Respondent said "so long, motherfuckers". Respondent also directed profanity at specific students in his classroom. On occasion, Respondent's students heard him shout at students the words "dumb motherfucker", "asshole", "fuck off", "bitch" and "dumb bitch". On one occasion, Janet Masciotra, a teacher at Tyrone, entered Respondent's classroom while he yelled at an African American male student "you dumb nigger". Ms. Masciotra was surprised at Respondent's language and left the room without Respondent having observed her. Throughout the period, Respondent yelled similar disparaging remarks to students who wanted to make up homework after being ill and absent from class. Respondent often times made disparaging comments to students concerning their ability to learn and referred to students as "retarded" and "EH". On numerous occasions, Respondent slept in class by putting his feet on his desk, leaning back in his chair and closing his eyes. Respondent engaged in such behavior for varying lengths of time and while so doing, his class was most often not engaged in any school related or other meaningful activity. Respondent on occasion drank mouthwash from a bottle in the presence of students. Also, during this period Respondent often asked students in his class for gum and breath mints. When he did so, students complained of smelling alcohol on his breath. During this period, Respondent also left his classroom for varying periods of time leaving students unsupervised and left school grounds during the day. Respondent was familiar with the rules and procedures in effect at Tyrone Middle School and was aware of the expected hours for instructional employees to be on campus. Respondent was often late to school and was absent without following the proper procedures of notifying the school administration. On one occasion, the school resource police officers covered Respondent's classroom during his absence. Respondent's tardiness and absences during the school day meant that other staff members had to open Respondent's classroom and supervise his students. Students and parents expressed concern throughout the 1991-92 school year that Respondent was not properly teaching his classes and that he did not assign enough work. One student asked to withdraw from his class because "nothing was really happening". Other parents expressed concern about the Respondent's use of profanity in class. One student, P.K., went home after Respondent used inappropriate language. P.K. became upset to the point of crying while telling her mother what Respondent said. P.K.'s mother was offended by Respondent's conduct. During the 1991-92 school year, Respondent engaged in inappropriate conduct toward Bennie Smith, a teacher at Tyrone. Respondent's comments to Ms. Smith included attempting to solicit her to have an affair with him. Ms. Smith told Respondent that she was married and tried to avoid further contact with Respondent. During the spring semester of 1992, Smith rushed down a hallway in order to make "dittos" for her class. Respondent called to Ms. Smith and she slowed down. Respondent caught up with Ms. Smith and brushed his genital area against her buttocks. Later in the semester, Smith and Mark Benson, another instructional employee, walked down a school corridor on the way to a meeting. Respondent, who was walking behind them, reached forward and grabbed Ms. Smith's buttocks. Because the incident happened in the proximity of students and other teachers, Ms. Smith did not confront Respondent however she later made Respondent's conduct known to administrative officials. Mark Benson observed Respondent's hand move toward Ms. Smith's buttocks and later discussed it with Smith. Josephine Trubia worked as an aide in Barbara Day's EH classroom during the 1991-92 school year. Respondent made comments about Trubia to Kimberly Coleman, the sister- in-law of Josephine Trubia. Respondent told Coleman that Trubia was a "sixties kind of woman" that "walked like she was going places". When Coleman told Respondent that Trubia was her sister-in-law, and that her husband was a police officer, Respondent backed off. Respondent made compliments to Trubia about her appearance and attire which Trubia found to be sexually suggestive. Specifically, on one occasion, Trubia went to Respondent's classroom with a student to retrieve the student's make-up work. Respondent made comments about her appearance and asked her if she would wear her black skirt and pantyhose. Respondent further asked Trubia to date him and go with him (on a date) to Tampa. Trubia declined Respondent's advances although he continued to make suggestions that they go on a date and on one occasion backed Trubia toward a wall in his classroom. Trubia returned to her classroom whereupon teacher's aide Ronnell McDaniel noticed that she was visibly upset and nervous. Trubia confided to Ms. McDaniel that Respondent had made comments about her appearance and cornered her in his classroom. The following day, Trubia reported the incident to Barbara Day and expressed concerns about Respondent. Ms. Day advised Trubia to discuss the incident with the school's administration. Trubia resigned and found employment elsewhere. Respondent's actions made Trubia feel uncomfortable and was a factor in causing her to leave her employment at Tyrone. During the 1991-92 school year, Respondent was a member of an academic team with three other teachers. In January 1992, Respondent met with the three academic team members in the teacher's lounge. Respondent appeared incoherent and spoke in a disjointed fashion. Respondent became agitated and accused the team members of "playing games". He further threatened them by remarking that things were going to get physical. Respondent's actions caused the team members to feel upset and uncomfortable causing one team member to start locking her classroom door after school. On February 20, 1992, while walking behind several teachers including Jim Joyer, David Blacuk and Richard Bessey, Respondent was heard to use profanity. On another occasion, Blacuk walked down a school corridor when Respondent stepped out of his room and used profanity such as "motherfucker" and "son-of-a-bitch" in the presence of Blacuk and other students. During a faculty meeting held in the media center after school, Respondent became visibly agitated while Blacuk spoke. Respondent stood up and stated "bullshit. This is bullshit" in a tone loud enough to be heard by everyone in the room. Carolyn Chester was employed as an aide at the media center during the 1991-92 school year. On a Monday morning in January, Ms. Chester went to Respondent's classroom to retrieve some video equipment. Ms. Chester encountered Respondent outside his classroom door as he approached from the parking lot. Respondent angrily told Chester not to play games with him and shouted that he did not have the equipment. Ms. Chester returned to the media center and told media specialist Sheila Chaki about the incident. A few minutes later, Respondent entered the media center and again spoke to Chester in a loud and angry manner. Respondent had also became upset about the S.O.S. table which was set up in the media center with self-help books for students. Respondent threw down a flier about the S.O.S. table and stated "this is bullshit, too". Respondent's conduct in the media center was observed and heard by Ms. Chaki and several students who were present. During the 1991-92 school year, staff members detected the odor of alcohol on Respondent's breath. Article XVI, Section E of the agreement between the School Board and the Pinellas County Teachers Association provides that "teachers are to treat other employees of the system in a professional manner at all times". According to Miller, the principal at Tyrone, Respondent's sexually offensive actions and confrontational conduct caused morale problems among some staff members at Tyrone. Respondent's use of profanity directed toward students and his sleeping while in the classroom undermined the confidence of parents and caused a disruption in the educational process. Doctor Howard Hensley, superintendent of schools for Pinellas County, and who was qualified as an expert in the area of education and education administration, testified as to the manner in which Respondent's conduct reduced his effectiveness as an instructional employee. The Pinellas School Board expects its instructional employees to be role models and to avoid the use of profane language as it fails to set a proper example as role models for students. The use of racial epitaphs and derogatory comments are also counter- productive to Pinellas County School Board's policies and its attempts to promote cultural diversity and tolerance among its students. Likewise, vulgar language directed toward other members of the school staff is unacceptable in that it harms the ability of staff members to work together cooperatively. Inappropriate and threatening comments reduce the effectiveness of the person making the comments and adversely affect staff morale. The Pinellas County School District intends that all employees feel comfortable in their work places and that they be free from sexual harassment and confrontational conduct from its fellow employees. Sexual harassment of staff members violates this intention and possibly subjects the district to legal liability. Sleeping in class violates the School Board's expectations that its teachers supervise and set a good example for students. Vulgar language directed towards students violates the expectations of the Pinellas School District in that it sets a poor example for students and reduces that teacher's effectiveness. Individual ridiculing of a student by the use of profane or disparaging comments subject the students to embarrassment. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Pinellas County School Board, enter a Final Order terminating the professional service contract between Respondent Jerome W. Jackson and the School Board of Pinellas County, Florida. Petitioner, Betty Castor as Commissioner of Education, the Education Practices Commission, enter a Final Order revoking Respondent's teaching certificate for a period of seven (7) years to be followed by a three (3) year period of probation with the Education Practices Commission upon his recertification following the period of revocation. The terms of the probation shall include the requirement that Respondent follow such terms and conditions imposed by the Education Practices Commission. DONE and ENTERED this 7th day of December, 1992, at Tallahassee, Florida. JAMES E. BRADWELL 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 7th day of December, 1992.
The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Karen Holcomb.
Findings Of Fact Respondent Karen Holcomb is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.1/ Ms. Holcomb's complete employee file was not presented at the hearing. Performance evaluation documents that were entered into evidence show that she was an employee of the School Board for at least the following periods and in the following capacities: eighth grade math teacher at Eustis Middle School for the 2002-2003 and 2004-2005 school years; guidance counselor at Mount Dora Middle School for the 2005-2006 school year; math teacher at South Lake High School for the 2007-2008 school year; and art teacher at Eustis High for the 2009-2010 and 2010-2011 school years. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains six sections and 12 subsections. The subsections are further divided into sub-subsections.2/ The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I results in probationary status for the teachers, triggering the NEAT procedure and further evaluations. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance Form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. The record evidence indicates that Ms. Holcomb received a grade of 12 on her Appraisal I for the 2002-2003 school year, dated February 10, 2003, as a math teacher at Eustis Middle School and on her Appraisal I for the 2005-2006 school year, dated March 1, 2006, as a guidance counselor at Mt. Dora Middle School. On March 21, 2006, Ms. Holcomb received an Appraisal II for her failure to timely update a student's accommodation plan under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. On April 25, 2006, Ms. Holcomb received two Appraisal IIs. One cited Ms. Holcomb for a failure to report to work, stating that she did not inform administration or school site personnel that she would not be at work on April 7, 19, 20, and 21, 2006. The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement in notifying her worksite of her absences. In response, Ms. Holcomb submitted an affidavit from her husband stating that on the dates in question, Ms. Holcomb was either sick with a severe headache or in the hospital for cardiac problems. Ms. Holcomb's husband took responsibility for any failure to contact the proper school authorities regarding Ms. Holcomb's absences from work on those dates. The other April 25, 2006, Appraisal II stated that Ms. Holcomb was "not able to perform her job requirements due to excessive absences. The total number of days out as of April 21, 2006 is 31.5 days." The "recommended procedure for correction" was that Ms. Holcomb should "come to work on time and when required by work calendar designated by School Board and school site policy." The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement. In response, Ms. Holcomb filed a memorandum explaining that her absences were due to legitimate illness and injury, including a 15-day hospitalization for broken ribs and collarbone, two days missed due to severe headaches, and four days missed due to hospitalization with heart attack symptoms. Ms. Holcomb suggested that the Appraisal II was part of an effort by school administrators "to undermine my current Professional Services Contract with Lake County Public Schools and destroy my reputation, due to an unknown agenda." As noted above, Ms. Holcomb began work as an art teacher at Eustis High during the 2009-2010 school year. On October 27, 2009, she received an Appraisal II from then- assistant principal Kristine Durias due to her classroom management. Ms. Durias explained the unacceptable aspects of Ms. Holcomb's classroom management as follows: I noted on several occasions that students in your classroom were not abiding by District, school and classroom procedures and were without correction from you as their teacher. On my last visit to your classroom on 10/22/09, 3 students had iPods out, 5 students were wandering around the classroom not engaged in the project and 1 student had their head down, all without regard from the teacher. Ms. Durias also provided Ms. Holcomb with a Prescription/Assistance Form setting forth the areas of performance that required improvement and providing resources to assist Ms. Holcomb in bringing her performance level up to the School Board's standards. These resources included page references to the IPPAS Handbook section on "Classroom Management," in-service classes on "Effective Classroom Management Strategies" and "Classroom Management for Secondary Teachers." The Prescription/Assistance Form also stated that Ms. Durias would contact the instructional coach to assist Ms. Holcomb and would ask another staff member to mentor Ms. Holcomb on school policies and procedures. The Prescription/Assistance Form provided that Ms. Holcomb's performance should show improvement "immediately," but also stated that her performance would be checked within three weeks. On November 17, 2009, from 12:40 p.m. until 1:20 p.m., Ms. Durias observed Ms. Holcomb and scored her on the Appraisal I form. Ms. Durias gave Ms. Holcomb a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Durias found Ms. Holcomb's performance deficient in two sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." She was graded as unsatisfactory in four of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" "Recognizes response/amplifies/gives corrective feedback;" and "Directs lesson." At a post-appraisal conference on December 2, 2009, Ms. Durias gave Ms. Holcomb a Prescription/Assistance Form. This form essentially directed Ms. Holcomb to continue with the recommendations set forth in the Prescription/Assistance Form issued on October 27, 2009. Because the November 17, 2009, evaluation resulted in a score that was below the minimum IPPAS requirement of 12, Ms. Durias designated it as an "Observation" rather than a formal Appraisal I that would immediately affect Ms. Holcomb's employment status.3/ In the Prescription/Assistance form, Ms. Durias informed Ms. Holcomb that another IPPAS appraisal would be conducted within three weeks. The appraisal was not conducted within the stated three weeks because Ms. Holcomb was out on sick leave from January 21, 2010, through April 20, 2010. On April 23, 2010, two days after Ms. Holcomb returned to work from her lengthy absence, an Appraisal I of her performance was conducted by assistant principal Marta Ramirez, who joined the staff at Eustis High School in March 2010. Ms. Ramirez testified that it is not at all unusual to evaluate a teacher who has been out of work for a long period of time. Teachers are frequently out on maternity leave or due to illness. Ms. Ramirez stated that the School Board expects every teacher to perform at the level required to pass an IPPAS appraisal whenever she comes to teach, whether it is the first day of school or the first day back from an extended leave. Ms. Ramirez observed Ms. Holcomb from 12:44 p.m. until 1:44 p.m. and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 8 on the appraisal, rating her unsatisfactory in four of the 12 subsections. The section "Teaching Procedures" contains four subsections, one of which is "Displays skills in making assignments." Ms. Ramirez found Ms. Holcomb's performance deficient in that subsection due to an unsatisfactory score in the sub-subsection titled "Gives clear and explicit directions." The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found Ms. Holcomb's performance deficient in three of the four sub-subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in both subsections: "Demonstrates knowledge and understanding of the subject matter" and "Communicates and presents subject matter in a manner that enables students to learn." As to the first subsection, Ms. Holcomb was graded as unsatisfactory in one of two sub-subsections, "Sequence is logical." As to the second subsection, she was graded as unsatisfactory in three of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" and "Directs lesson." At the hearing, Ms. Ramirez testified as to her observations of Ms. Holcomb's teaching methods. Ms. Ramirez stated that there is a standard procedure for ensuring a prompt start to the class. Before the students come into the classroom, the teacher writes a "bell ringer" on the blackboard, i.e., an activity that the students are expected to work on while the teacher takes attendance. Ms. Holcomb had no bell ringer activity prepared for her students, who sat down at their tables with nothing to do. The students talked among themselves, a distraction that lengthened the process of taking attendance to six minutes. Ms. Ramirez found Ms. Holcomb's performance deficient in the areas of starting class promptly and being on task. Ms. Ramirez stated that another standard classroom procedure is the teacher's stating the objective of the day's lesson. Ms. Holcomb stated no objective either orally or in writing. Because there was no stated objective, the lesson did not proceed in a meaningful, orderly fashion. Ms. Holcomb seemed to jump from one thing to another. Some students were confused, looking to Ms. Holcomb and trying to figure out what they were supposed to do. Ms. Ramirez noted that the lack of a set procedure or guidance from the teacher naturally leads the students to lose focus and begin talking among themselves. Ms. Holcomb's students began chatting, which led Ms. Holcomb to attempt disciplinary measures. She began by saying "cut." Ms. Ramirez was not sure what "cut" meant, but surmised that it was Ms. Holcomb's instruction to the students to stop talking. The instruction had no effect on the students. Ms. Ramirez testified that there was still some confusion 20 minutes into the class period. The students still did not understand the assignment. They were blurting out questions such as, "What are we doing?" and "Is this for a grade?" They were asking each other what they were supposed to be doing. At some length, they understood the assignment and began work, though an undercurrent of confusion remained. Ms. Ramirez attributed this undercurrent to Ms. Holcomb's failure to state an objective or purpose to the assignment. Ms. Ramirez was also critical of Ms. Holcomb's interactions with the students. Ms. Ramirez stated that accepted practice is for the teacher to state a single question, wait for a moment, call on a student, and affirm the correct answer. If the answer is incorrect, the teacher provides feedback that steers the class toward the correct answer. Ms. Ramirez testified that Ms. Holcomb allowed the students to shout out answers in a chaotic manner. Ms. Ramirez stated that the class period lasted for 90 minutes, but that she left after an hour because the class "didn't seem to be headed any direction, just headed downhill." The students were not on task and were not learning anything. As a result of the substandard Appraisal I score, Ms. Ramirez completed a Prescription/Assistance Form that she gave to Ms. Holcomb at a post-observation conference on April 29, 2010. Eight areas for improvement were listed, corresponding to the eight sub-subsections for which Ms. Holcomb received unsatisfactory scores on the April 23 Appraisal I. Eight pages of the IPPAS Handbook were attached as reference resources to assist Ms. Holcomb to improve her performance. The Prescription/Assistance Form also provided that an instructional coach would assist Ms. Holcomb in applying best teaching practices and that she could obtain in-service instruction in classroom management. The form also "encouraged" Ms. Holcomb to take staff development workshops provided by Lake County. Also on April 29, 2010, Eustis High principal Al Larry issued a memorandum to Ms. Holcomb advising her of performance deficiencies in the areas of "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter," as reflected in the April 23 Appraisal I. Mr. Larry noted that as to the latter two areas, Ms. Holcomb had shown deficiencies in the observation of November 17, 2009, and that those deficiencies had not been corrected. Mr. Larry's memorandum closed as follows: "Based on the performance deficiencies, I am placing you on performance probation for 90-calendar days beginning on Monday, August 23, 2010. The 90-calendar days will end on Monday, November 22, 2010." By letter dated May 7, 2010, Superintendent of Schools Susan Moxley warned Ms. Holcomb of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Ms. Ramirez testified that she contacted Claude Pennacchia, a former principal who acts as instructional coach for eight schools. Mr. Pinnachia agreed to contact Ms. Holcomb and set up a meeting. Because she called Mr. Pennacchia near the end of the school year, Ms. Ramirez contacted him again at the start of the new school year in August to remind him of the need to provide training to Ms. Holcomb. Mr. Pennacchia told her that he had tried to arrange a meeting with Ms. Holcomb, but they could not agree on a time. Ms. Ramirez testified that to the best of her knowledge Ms. Holcomb never made herself available to meet with Mr. Pennacchia. Ms. Ramirez was not aware that Ms. Holcomb ever did anything that was recommended by the April 29, 2010, Prescription/Assistance Form. Ms. Ramirez testified that Ms. Holcomb was in school for the first two weeks of the 2010-2011 school year, then became ill and was out until sometime in November 2010. The follow-up observation was conducted by Ms. Ramirez on December 1, 2010, after the running of the 90-day probation period. Ms. Ramirez observed Ms. Holcomb from 10:23 a.m. until 11:00 a.m.4/ and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 7 on the appraisal, rating her unsatisfactory in five of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found Ms. Holcomb's performance deficient in two of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in one subsection, "Communicates and presents subject matter in a manner that enables students to learn." Within that subsection, Ms. Holcomb was graded as unsatisfactory in two of seven sub- subsections: "Uses questioning techniques" and "Recognizes response/ amplifies/ gives corrective feedback." Under the section "Assessment Techniques," Ms. Holcomb was rated unsatisfactory in the sole subsection, "Uses assessment strategies to assist in the continuous development of the student." Within that subsection, Ms. Holcomb was graded as unsatisfactory in one of four sub-subsections, "Checks student progress based on the performance standards required of students in Florida public schools, analyses data, including annual learning gains at the classroom and school levels, and makes appropriate adjustments." Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in one of three subsections, "Engages in continuous professional improvement for self and school." This subsection contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." At the hearing, Ms. Ramirez explained that the sections of the Appraisal I document being scrutinized during the observation are "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter." The sections titled "Planning," "Assessment Techniques," and "Personal Characteristics and Professional Responsibilities" are covered in the post-observation conference with the teacher, at which time the teacher shares her portfolio or other evidence of compliance with IPPAS standards with the evaluator. Ms. Ramirez testified that on this occasion Ms. Holcomb had an assignment on the board as the students entered, but that the students still appeared confused. They did not seem to know what they were supposed to be doing. The students continued to talk among themselves even when Ms. Holcomb began a review. Ms. Ramirez noted that Ms. Holcomb was still using "cut" to end the students' conversations, and that it was still being ignored. Ms. Holcomb had posted rules of conduct in her classroom that included raising one's hand and being called on by the teacher before asking a question. Ms. Ramirez testified that this rule was ignored by the students and Ms. Holcomb. The students would blurt out questions, and Ms. Holcomb would answer them. Ms. Ramirez found it highly problematic that Ms. Holcomb was not even attempting to enforce her own rule. Ms. Ramirez noted that students walked into class several minutes after the bell and Ms. Holcomb took no notice. Students walked into the class with food and started eating. Other students simply stood up and walked out of class. Ms. Holcomb did not address any of these misbehaviors. Ms. Ramirez testified that before leaving the classroom, a student is supposed to ask permission, get a pass, and sign out. Ms. Holcomb seemed unaware that students were walking in and out of the classroom while she taught the lesson. Ms. Holcomb's failure to observe the hall pass protocol created a dangerous situation because there was no accountability for these children. They were without adult supervision outside the classroom and could go anywhere or do anything. During cross-examination, Ms. Ramirez was questioned regarding the size and configuration of Ms. Holcomb's classroom in connection with the fact that Ms. Holcomb was using a wheelchair during this period. Counsel was attempting to demonstrate that at least some of the discipline problems were not Ms. Holcomb's fault because the layout of her classroom ensured that she was unable to see all of her students from her position in the wheelchair. Ms. Ramirez acknowledged that Ms. Holcomb's art class was large, between 35 and 40 students, and that Ms. Holcomb had to navigate the room in a wheelchair. However, Ms. Ramirez also testified that being in a wheelchair did not absolve Ms. Holcomb of her responsibility for the safety of the children in her classroom. More than one person in the Eustis High administration had urged Ms. Holcomb to rearrange the tables in her classroom to give herself a clear view of all the students. Ms. Holcomb had been advised to look at the classroom of the art teacher next door for ideas on how to arrange the tables. For some reason, Ms. Holcomb declined to change the configuration of the tables in a way that would curtail the students' ability to essentially hide from her. Ms. Ramirez conducted a post-observation conference with Ms. Holcomb on December 6, 2010. Prior to the conference, Ms. Ramirez spoke to Mr. Larry about the results of the Appraisal I. She told Mr. Larry that Ms. Holcomb had requested that her union representative be present at the conference and that "it doesn't look good" for Ms. Holcomb because she received unsatisfactory scores in two of the same subsections she had failed on the April 23, 2010, Appraisal I. In light of this information, Mr. Larry decided that he would attend the conference as well. On December 7, 2010, Ms. Holcomb submitted written comments that provided as follows, in relevant part: To begin, this is the culmination of Mr. Larry's hostile attitude toward my... appointment to Eustis High School.... Mr. Larry has not spoken one kind word to me since the appointment in August of 2009. Since my appointment to Eustis High School, I have had to work in a hostile environment where Mr. Larry has been using the Florida Statute 1012.34 assessment procedures as a weapon to fire me. Using an assessment procedure where nothing less than perfect is failing, Mr. Larry used his assistant principals to do his bidding where acceptable or unacceptable grades are completely subjective. In other words, the assessment is biased where any teacher that the principal does not like has no chance of passing and there is no supervisory protection or due process afforded to the teacher. . . (Emphasis in original.) Ms. Holcomb also alleged that Mr. Larry "violated the intent of the ninety days rule" for performance probation when he did not extend the time for improvement of her deficiencies in light of her eight-week stay in the hospital. Ms. Holcomb also alleged that Mr. Larry refused her request to move to an open guidance counselor position that would not require her to show classroom management skills. There was no record evidence that Mr. Larry held any grudge against Ms. Holcomb.5/ Ms. Ramirez denied receiving any instruction or direction from Mr. Larry as to her evaluations of Ms. Holcomb's performance as a teacher. There was no record evidence that Ms. Holcomb applied for a guidance counselor position during the period in question. By letter dated December 7, 2010, Mr. Larry informed Superintendent Moxley that Ms. Holcomb had failed to correct her performance deficiencies, that Mr. Larry did not believe Ms. Holcomb capable of correcting those deficiencies, and recommending that Ms. Holcomb's employment be terminated. In a letter to Ms. Holcomb dated December 10, 2010, Superintendent Moxley wrote as follows: Pursuant to Florida Statute 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Please be advised that I will recommend to the Board that your employment be terminated as of January 10, 2011. You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have. Ms. Holcomb filed a grievance pursuant to School Board Policy 6.35. In light of that grievance, Superintendent Moxley rescinded Ms. Holcomb's termination until such time as Ms. Holcomb could receive a second Appraisal I observation by an administrator from outside Eustis High. June Dalton, the principal of Tavares High School, was selected by chief of curriculum Nancy Velez to conduct the observation. Ms. Dalton began teaching in Lake County in 1978 as a physical education teacher. After teaching for 13 years, Ms. Dalton became an administrator. She has served 14 years as a principal, including eight years at the high school level. Ms. Dalton has been trained in use of the IPPAS Handbook and sat on a committee charged with updating the IPPAS program. She has trained administrators on the IPPAS system. At the time she accepted the assignment from Ms. Velez, Ms. Dalton had never met Ms. Holcomb. Ms Dalton met Ms. Holcomb for the first time at the pre-observation conference on January 11, 2011. They discussed the appraisal form, including every aspect of the observation and the areas on which Ms. Dalton would focus. Ms. Dalton assured Ms. Holcomb that she was there to help her meet the minimum standards in her appraisal. Ms. Dalton testified that Ms. Holcomb had some concerns about the layout of her classroom and asked for her ideas. Ms. Holcomb told Ms. Dalton that she had trouble maintaining order with some of the students in her classroom. Ms. Dalton testified that Ms. Holcomb's classroom was long and narrow, with tables arranged in such a way that at times some students were facing away from the teacher. Ms. Dalton suggested setting the tables end to end along the length of the room, so that Ms. Holcomb could lecture in front and be seen by all of the students. Ms. Dalton stated that when she came to the room for the observation, the tables had not been moved.6/ Ms. Dalton asked to see Ms. Holcomb's individual personal development plan ("IPDP"), a document that all teachers are required to complete that identifies individual goals and objectives designed to promote their personal growth. The teacher is required to state objectives that are feasible and primarily under her control, are measureable and/or observable, and are agreed to and signed by the teacher and her supervisor. Ms. Dalton stated that it is her practice at Tavares High School to review her teachers' IPDPs before their observations. Ms. Holcomb told Ms. Dalton that she had turned in her IPDP to Ms. Ramirez, but that she could not find her copy of the signed document. Ms. Holcomb printed a copy of the IPDP to show to Ms. Dalton. After reviewing the IPDP, Ms. Dalton concluded that it was not a workable plan as written because there was no way that Ms. Holcomb could document the student progress that she intended to bring about. Ms. Dalton gave Ms. Holcomb some suggestions for making her IPDP into an acceptable document. Ms. Holcomb agreed that she would rewrite the IPDP and have it ready for Ms. Dalton at the time of the observation. However, on the day of the observation, Ms. Holcomb told Ms. Dalton that she had not had time to work on it. Through his questioning of Ms. Ramirez, counsel for Ms. Holcomb insinuated that that Ms. Holcomb had turned in an IPDP to Ms. Ramirez in October 2010, but that Ms. Ramirez had lost the IPDP by the time she performed her Appraisal I on December 1, 2010. Ms. Ramirez testified that the first time she ever saw an IPDP from Ms. Holcomb was at the December 6 post- observation conference. The document was handwritten and was missing significant information. Ms. Holcomb had been notified that that the IPDP was part of her Appraisal I and that she needed to bring it to her post-observation conference. Ms. Ramirez gave her an unsatisfactory mark for the incomplete IPDP. The testimony of Ms. Dalton and Ms. Ramirez is credited as to the IPDP. It is apparent that Ms. Holcomb created a typed IPDP at some point between December 6, 2010, and January 11, 2011, but that she never gave it to her supervisor at Eustis High for review and approval. Ms. Holcomb tried to make Ms. Dalton believe that the IPDP she printed at the pre- observation conference on January 11 was an approved, finished product when in fact it was, at best, a draft IPDP. After they finished with the pre-observation conference, Ms. Dalton and Ms. Holcomb discussed dates for the observation. Ms. Holcomb did not want the observation to take place until after semester exams. Ms. Dalton agreed that little would be gained from having her observe Ms. Holcomb as she proctored an exam. They agreed on a date, but Ms. Holcomb was out sick on the scheduled date. After a few reschedulings, the observation took place on February 17, 2011. Ms. Dalton's observation lasted from the time the bell rang at 12:44 p.m. until class was dismissed at 2:14 p.m. Ms. Dalton was in the classroom several minutes before the opening bell. On the Appraisal I form, Ms. Dalton gave Ms. Holcomb a score of 6, rating her unsatisfactory in six of the 12 subsections. The section "Planning" contains a single subsection titled "Plans, implements, and evaluates instruction," for which Ms. Holcomb was given an unsatisfactory score. Within that subsection, Ms. Holcomb was given an unsatisfactory score on one of the four sub-subsections, titled "Develops short and long term personal and professional goals related to instruction as evidenced by an Individual Professional Development Plan." The section "Teaching Procedures" contains four subsections, in two of which Ms. Dalton graded Ms. Holcomb's performance as unsatisfactory. Under the subsection titled "Uses instructional materials effectively," Ms. Holcomb was graded unsatisfactory in the sub-subsection titled "Uses technology in the teaching and learning process." Under the subsection titled "Recognizes and provides for individual differences," Ms. Holcomb was given an unsatisfactory score in the sub-subsection titled "Attends to student needs." The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which students are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Dalton found Ms. Holcomb's performance deficient in three of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors." Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in two of the three subsections. The first subsection, "Engages in continuous professional improvement for self and school," contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." The second subsection was titled "Complies with Board rules, policies, contract provisions, and published school-site rules and policies consistent with Board rules and contract provisions" and contained no sub-subsections. Ms. Dalton testified that Ms. Holcomb did not have a bell ringer activity to keep the students engaged while she took attendance. Ms. Holcomb frequently had to stop taking attendance to admonish talkative students. Ms. Dalton stated that Ms. Holcomb was still taking attendance at 12:53, nine minutes after the opening bell. She started entering the attendance into her computer at 12:58, and was not finished with marking attendance until 1:01, seventeen minutes into the class period. Ms. Dalton found it apparent from the start that there was no class routine. The students had to be told what to do at every step of the way. At the end of attendance, Ms. Holcomb explained a journal assignment she had written on the board, but most of the students talked all the way through her explanation and some did not perform the assignment at all. There were no consequences for their misbehavior. Ms. Holcomb held up samples of a project the class had begun in a previous session and was continuing to work on. The students in the middle of the room had a good view of the samples, but the students at the far end of the room had a hard time seeing. Ms. Dalton noted that some students were working on the project and some were not. Some were talking. Students at two different tables were texting or playing with their cell phones. Ms. Dalton stated that Ms. Holcomb frequently stopped to announce that she was waiting for the class to be quiet. She also used a technique called "harsh desist," singling out a student to threaten with removal from class. One such student replied, "Good, get me out of here." Ms. Holcomb called out to Table Five that she was taking away five points for talking, though not everyone at the table was talking. Ms. Dalton heard one of the students at the table say, "Well, it doesn't matter, she doesn't know our names anyway." Ms. Dalton took this statement as a sign that Ms. Holcomb's method of correcting misbehavior was not effective. Ms. Dalton noticed that Ms. Holcomb did not have current class rosters. The rosters and seating charts in her folder were from the previous semester. Ms. Holcomb did not know the names of the students at Table Five and therefore was unable to deduct points from them. Ms. Holcomb told another table that she was awarding it bonus points, but Ms. Dalton wondered how Ms. Holcomb could do that when she did not know the students' names. Ms. Dalton noted that Ms. Holcomb's voice was loud to the point of yelling. Ms. Dalton believed that if Ms. Holcomb would use a quieter voice, then the students who were not being intentionally disruptive might quiet down. Ms. Dalton testified that in her experience students will stop talking if they cannot hear what the teacher is saying. If they can hear the teacher over their own quiet conversation, then they will go on talking. Ms. Dalton stated that Ms. Holcomb had some technology in the classroom but for some reason declined to use it. Ms. Holcomb had a document camera that could have been used to show a document to the entire class. All of the components to the camera appeared to be present, but Ms. Holcomb failed to use it. Ms. Dalton observed three students at one table who did nothing for 35 minutes but draw on their arms, talk, and play with their phones. Finally, Ms. Holcomb addressed two of the students. However, they continued to draw on their arms and not work even when Ms. Holcomb sat next to one of them. Ms. Holcomb gave these students no further corrective feedback. Ms. Holcomb attempted to gain control of the class by threatening detention for the next Tuesday. She stated that if a student receiving a detention became argumentative or disrespectful, she would escalate the discipline to a referral. Ms. Dalton saw Ms. Holcomb's threats as empty because the promised detentions were five days in the future. Ms. Dalton also noted that Ms. Holcomb had not yet contacted the parents of any of the disruptive students. Ms. Dalton testified that Ms. Holcomb did some things well. She worked with some students individually. She gave them feedback. Overall, Ms. Dalton saw a class in which some students were trying to do their work, and in which many other students were talkative, did not seem to care about their work, and did not fear any consequences. Ms. Holcomb's method of dealing with the discipline problem was to make empty threats. Ms. Dalton acknowledged that the score of six was "a bad score." The observation gave her concerns about Ms. Holcomb's ability to teach in a classroom. Ms. Dalton stated, "It was a difficult class to watch." The students who wanted to learn were not getting what they needed because the teacher was spending so much time ineffectively trying to get minor misbehaviors under control. Ms. Dalton testified that the post-observation conference, held on February 18, 2011, was uneventful. She asked Ms. Holcomb whether she had called the parents of the students who were disrupting her class. Ms. Holcomb stated that she intended to commence calling them that evening. From Ms. Holcomb's reply, Ms. Dalton concluded that Ms. Holcomb was not taking charge or involving the parents in getting the misbehaviors under control. On February 22, 2011, Ms. Holcomb submitted her written comments on the evaluation. She again decried the subjectivity of the evaluation criteria and the fact that a perfect score is required for a satisfactory appraisal. She alleged that Eustis High and the School Board were "using the Florida Statute 1012.34 as a tool to fire me because I am a handicapped teacher in a wheelchair." Ms. Holcomb stated that she had turned in her IPDP more than once but that her administrator never signed it. She stated that the document camera did not work properly. She argued that the school had a faulty system for removing disruptive students and that her phone calls to parents had not improved the students' behavior. Ms. Holcomb argued that she could not properly manage the classroom when there were students in the room who did not want to be there but whom Mr. Larry would not permanently remove from her class. Ms. Dalton testified that during the post-observation conference, Ms. Holcomb said nothing about the document camera not working. Ms. Dalton saw only one student who expressed a desire to be out of Ms. Holcomb's classroom. She reiterated her opinion that the disciplinary problem in Ms. Holcomb's classroom was minor but that Ms. Holcomb escalated the problem through her mishandling of the disruptive students. Ms. Dalton saw nothing in Ms. Holcomb's comments that changed her mind about the scores she gave Ms. Holcomb on the Appraisal I. In a letter to Ms. Holcomb dated March 14, 2011, Superintendent Moxley wrote as follows: Pursuant to Florida Statutes 1012.33 and 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Due to the global nature of the identified performance deficiencies, you have demonstrated incompetence and the lack of the qualifications needed to be an effective teacher. Please be advised that I will recommend to the Board that your employment be terminated as of March 28, 2011. You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have. Ms. Holcomb timely requested a due process hearing by letter dated March 18, 2011. On the same date, Superintendent Moxley notified Ms. Holcomb in writing that she would recommend that Ms. Holcomb be placed on unpaid suspension at the March 28, 2011, School Board meeting and that the suspension last until the conclusion of the due process proceeding. The first duty of school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. The evidence established that the process followed by School Board personnel in evaluating Ms. Holcomb's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA.7/ The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. At the outset of the final hearing, the School Board announced that it intended to proceed exclusively pursuant to the "just cause" provision of section 1012.33. Therefore, there is no need for extensive findings as to whether the School Board met all of the substantive criteria for teacher dismissal set forth in section 1012.34(3).8/ The issue is whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1). On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Holcomb for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011.
