The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a), and, if so, what discipline should be imposed.
Findings Of Fact Ms. O’Neill holds Florida Educator’s Certificate No. 470617, covering the areas of early childhood development and elementary education, which is valid through June 30, 2007. At all times material to this proceeding, Ms. O’Neill was employed as a third grade teacher at Lakemont Elementary School (Lakemont) in the Orange County School District (School District). Dr. Susan I. Stephens has been the principal at Lakemont for 12 years. Dr. Stephens was Ms. O’Neill’s supervisor at Lakemont. On September 30, 2005, Dr. Stephens received a call late in the afternoon from a student’s parent complaining that she had smelled alcohol on Ms. O’Neill’s breath during a teacher-parent conference a few days before the call. Dr. Stephens went to Ms. O’Neill’s classroom to discuss the issue with Ms. O’Neill, but Ms. O’Neill had left for the day. The following Monday morning, October 3, 2005, Dr. Stephens confronted Ms. O’Neill in her classroom before school started about the allegations made by the parent. At that time, Dr. Stephens smelled alcohol on Ms. O’Neill’s breath. When Dr. Stephens told Ms. O’Neill that the parent wanted the child removed from her class, Ms. O’Neill acted very nonchalant and began to talk about other things that were not responsive to the issue being discussed. Dr. Stephens has had training to detect the use of alcohol and was of the opinion that Ms. O’Neill was under the influence of alcohol. After her discussion with Ms. O’Neill, Dr. Stephens sent her assistant principal, Randall Hart, to talk with Ms. O’Neill and to observe her. Mr. Hart returned and reported to Dr. Stephens that he also smelled alcohol on Ms. O’Neill’s breath and thought that Ms. O’Neill had been “acting differently.” By the time Mr. Hart had returned from observing Ms. O’Neill, students were arriving in the classroom. Dr. Stephens sent Mr. Hart back to Ms. O’Neill’s classroom to remain in the classroom while the students were present. Dr. Stephens called the Employee Relations Office of the School District and was given the name of a principal in a nearby school, who was trained in the detection of the use of alcohol. Dr. Stephens contacted the principal, Suzanne Ackley, and asked her to come and observe Ms. O’Neill. Ms. Ackley and Dr. Stephens went to Ms. O’Neill’s classroom. The students in Ms. O’Neill’s class had been sent to other classes for art, music or physical education. Ms. O’Neill was “giggly” and was slurring her words. She talked about things which were not related to the issues raised by the two administrators. Ms. Ackley agreed that Ms. O’Neill was under the influence of alcohol. Dr. Stephens and Ms. Ackley went back to Dr. Stephens’ office and called the Employee Relations Office for guidance. They returned to Ms. O’Neill’s classroom, and Dr. Stephens asked Ms. O’Neill to accompany her to an alcoholic testing center. At first, Ms. O’Neill agreed to do so, but wanted to go home first and get her medications. Dr. Stephens refused to let her go home before going to the test center. Ms. O’Neill then refused to go for testing and left her classroom headed for her car. Dr. Stephens did not feel that Ms. O’Neill should be driving in her condition and followed Ms. O’Neill to her car. Dr. Stephens had called for the police officer who was the school resource officer to meet them at Ms. O’Neill’s car. The police officer, Lina Strube, had over nine years of experience and had been trained to detect when a person was under the influence of alcohol. By the time Officer Strube got to the parking lot, Ms. O’Neill was in her car driving toward Officer Strube. Before Ms. O’Neill could get to the gate of the parking lot, Officer Strube stopped her and asked her to roll down her window, which Ms. O’Neill did. Officer Strube could smell alcohol on Ms. O’Neill’s breath and told Ms. O’Neill that she wanted to talk to Ms. O’Neill. Ms. O’Neill became agitated, and Officer Strube had to call for assistance. Based on her experience and training, Officer Strube felt that Ms. O’Neill was under the influence of alcohol. As a result of the incident on October 3, 2005, Ms. O’Neill employment with the School District was terminated. Ms. O’Neill’s was under the influence of alcohol while in the classroom and such conduct seriously reduced her effectiveness as an employee of the School District and showed her failure to make a reasonable effort to protect her students from conditions that are harmful to learning and/or to the students’ mental health or physical safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(e) and revoking her educator’s certificate for two years. DONE AND ENTERED this 30th day of June, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of June, 2008. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Michele O'Neill 110 Wigwam Place Maitland, Florida 32751 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida, 32399-0400
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
Findings Of Fact Case History The Department of Education, State of Florida, has filed an Administrative Complaint against Respondent, Daniel E. Moody, the substance of which Complaint is discussed in the Issues statement to this Recommended Order. Respondent has requested a formal hearing to consider the Administrative Complaint, having denied the material allegations of the Complaint. See Subsection 120.57(1), Florida Statutes. Following notice, a hearing de novo was held on March 3, 1982. In the course of the final hearing, Petitioner presented Clarence Newsome, Robert D. Williamson and Dalton Epting as witnesses. Petitioner offered two (2) exhibits which were received into evidence. Respondent testified in his own behalf and offered as witnesses William Benjamin Kyle, William L. Stone, and Rudolph W. McKissick. Respondent had one exhibit, late- filed, which is not granted admission for reasons which will be discussed in the Conclusions of Law section to this Recommended Order. Material Facts Respondent holds a teaching certificate issued by Petitioner. That certificate is No. 314402, Rank III, certifying Moody in the area of math. The certificate is valid through June 30, 1988. Respondent is presently employed and was so employed at all times material to the Administrative Complaint as a high school teacher in the public school system of Duval County, Florida, assigned to Englewood High School to teach mathematics. Presently, Respondent is Chairman of the Math Department in that school. On November 9, 1980, around 9:30 A.M., Respondent entered the Pic-N- Save store located at 7912 Lenn Turner Road, Jacksonville, Florida. Once inside the store, he went to a shopping aisle where automobile tune-up kits were located and picked up a package which had been opened. This package normally contained three (3) tune-up items; namely, points, condenser and rotor cap. The rotor cap in this particular package had been removed and an employee in the store had retaped the package container and placed it on the shelf before this occasion. After examining the package, Respondent replaced it on the shelf and picked up a second package which also was a tune-up kit containing three (3) parts. This package was sealed and had not been opened prior to Respondent's selection of the item. Respondent then began to tear open the cellophane which enclosed the tune-up pieces in the second package, pausing when persons who were in the store would enter the area where Moody was located. At those points in time, Respondent would stop tearing the cellophane and take other auto parts off shelves and then hang them back. Respondent was moving up the aisle as he conducted this process of opening the package. Once the package had been opened, he removed a rotor cap from the package and placed it in the right front pocket of his pants. Respondent then walked back to the area where he had originally picked up the second tune-up kit, laid that package down and picked up the original tune-up kit which had been taped by store employees and which was missing the rotor cap. He then proceeded to a service counter where the store manager, Clarence Newsome, was working. Moody spoke to Newsome and pointed out the fact that a part was missing from the first package and asked Newsome to discount the tune-up kit price, which Newsome agreed to do, discounting the cost from $2.59 to $1.59. This discount was noted by marking down the price on the package and returning it to Respondent. Robert Dale Williamson, an officer with the Jacksonville Sheriff's Department and part-time security officer at the Pic-N-Save store had observed Moody's activities with the two (2) packages of tune-up parts and had left his concealed observation position and followed the Respondent to the counter where Newsome was located. Once Respondent had concluded his transaction with Newsome, he turned around and was confronted by Officer Williamson who produced his sheriff's badge and identification card and asked Moody to accompany him to an area in the downstairs portion of the store. Moody and Williamson walked downstairs and once in a room in the downstairs location, Williamson asked Moody to remove the part that he had placed in his pocket. Moody responded that he did not have a part in his pocket and this remark was followed by Williamson's act of "frisking" Respondent and removing the black rotor cap from Moody's right front pocket, which had been taken from the second auto tune-up kit package. Moody made no comment about this item being removed from his pocket. While another employee stayed with Moody in this room, Williamson then went back into the store area where the second package had been left, recovered the package and the two (2) items that remained in that package and subsequently placed those items and the rotor cap which had been removed from Moody's pocket into a bag which was sealed and left with the store manager. Testimony by Dalton Epting, Director of Certified Personnel for Duval County School System, established that with the exception of a limited number of school personnel, the events of November 9, 1980, related to the alleged shoplifting were not known throughout the school system, either by faculty or students, nor in the general community. At the time of the incident, Epting was Principal at the high school at which the Respondent taught. Epting conferred with Respondent about the incident when it was brought to his attention and the Respondent having professed his innocence, Epting did not recommend further action be taken by the Duval County School Board. As an educator, Epting testified and accurately stated that a shoplifting incident is a matter which is not an acceptable example for young people and is an immoral act. In this instance, Epting correctly identified that the school authorities, students and community having not been told of the matters at issue here, Respondent has not lost his effectiveness as an educator, and Moody continues to maintain a good relationship and reputation among other teachers. During Epting's administration at Englewood High School, Respondent was promoted to Chairman of the Math Department and Respondent has passed a screening process which would allow him to be promoted to an administrative position. William Leon Stone who is the assistant principal for student services at Englewood High School also accurately stated that there has been no loss of effectiveness on the part of Respondent in his abilities as teacher, premised upon a knowledge by the overall community or by faculty members and school officials or students of the incident in question, those various groups having not been given knowledge of the events. Stone has found Moody's performance as teacher at Englewood High School to be in keeping with the standards of the Duval County School System. Finally, testimony was offered by Rev. Rudolph W. McKissick who is the pastor of Bethel Baptist Institutional Church in Jacksonville, Florida. Respondent is a member of that congregation and is an ordained deacon. Rev. McKissick gave testimony to the effect that Respondent has good moral character and is an active parishioner in church activities.
The Issue The issue to be determined is whether Petitioner has sufficient grounds to support dismissal of Respondent from employment.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher by the School Board and currently holds a professional services contract. He began working for the School District on or about March 2007, in the middle of the 2006-2007 school year. His first assignment was at Holmes Elementary School where he worked on a “waiver,” since he did not have an elementary education certification. The principal asked him to get his certification in elementary education, which he did. According to Respondent, he was asked to start working early because the principal did not have enough teachers. During that year, he was evaluated as meeting standards in all areas of evaluation and was rehired for the 2007-2008 school year. Prior to becoming a teacher in Miami-Dade County, Respondent served in the United States military from 1978-1985, and had worked as a registered nurse. He holds an associate’s degree from Miami-Dade College, a bachelor’s degree from Florida International University (“FIU”), two master’s degrees from FIU, an academic certificate in gerontological studies from FIU, and an academic teaching certificate from FIU. For the 2007-2008 school year, Respondent worked at Little River Elementary School (“Little River”). The principal at Little River asked Respondent to work on another “waiver,” this time for teaching English as a Second Language students (“ESOL”). After completing the necessary coursework, Respondent received an ESOL certification. Respondent remained at Little River through the 2008-2009 school year until he was involuntarily transferred to Scott Lake Elementary School (“Scott Lake”) for the 2009-2010 school year. During the latter two years at Little River, he was evaluated as meeting standards in all areas. According to Respondent, he was transferred to Scott Lake because the administration of Little River objected to the number of student discipline referrals (“SCMs”) he was writing on students. Respondent reports having written somewhere between 600 and 700 SCMs on students over the years. Respondent freely admits he wrote many SCMs at every school he worked at and highlights that fact as an excuse for why he performed poorly. During Respondent’s first three years of employment at Holmes Elementary and Little River, he was evaluated across the board on his annual evaluations as “Meets Standards.” During this period of time, the only other rating an employee could receive was “Does Not Meet Standards.” During the 2009-2010 school year, Respondent’s principal for his first year at Scott Lake was Valerie Ward. During the 2009-2010 school year, the School District made changes to the teacher performance evaluation system. Use of the Instructional Performance Evaluation and Growth System (“IPEGS”) was implemented. The IPEGS Summative Performance Evaluations (“SPEs”) were now comprised of eight Performance Standards, where a teacher could be rated “Exemplary,” “Proficient,” “Developing/Needs Improvement,” or “Unsatisfactory.” In her first year with Respondent, Ms. Ward rated him “Proficient” in all eight standards. At the end of the 2009-2010 school year, Ms. Ward placed Respondent on a 90-day performance probation pursuant to section 1012.34. During this 90-day probation process, he was observed by administration on at least five different occasions, was put on several improvement plans, and had several meetings with administrators. The 90-day probation process is very time- consuming for both the subject employee and the employee’s administration. In other words, it is not the preferred task of a busy principal, unless he or she must, and then only when it is warranted by poor performance. Respondent believes Ms. Ward placed him on performance probation to retaliate against him because he complained about the temperature in his classroom. This is the first of many excuses and justifications Respondent has offered to explain criticisms of his performance by administrators. For the 2010-2011 school year at Scott Lake, Respondent was again evaluated as proficient in all areas. On or about April 2012, Principal Lakesha Wilson- Rochelle assumed Ms. Ward’s role at Scott Lake. Principal Rochelle signed off on Respondent’s summative evaluation during the 2011-2012 school year, but did not fill it out, since it had already been completed by someone else. The score placed Respondent in the “needs improvement” category. She signed it only because she was required to do so, and the summative evaluation rating she gave him for the next school year was even worse by several points. It was also during the 2011-2012 school year that IPEGS underwent another change. Now there were seven professional practice standards on which teachers were evaluated and one standard that was based on actual student data. Use of IPEGS IPEGS was approved by the Florida Department of Education (“FDOE”) for all years relevant to this case. The IPEGS processes from the 2013-2014 school year forward consisted of the following: Each teacher that had been teaching for more than two years received one formal observation. If during that observation the teacher’s performance was sufficient, nothing more need be done, outside of a summative evaluation at the end of the year. However, informal feedback is given to teachers throughout the year after classroom walkthroughs and through other means. If a teacher was observed to be deficient in one or more standards during the formal observation, the teacher and administration would engage in something called “support dialogue” in which support in various forms is provided to the teacher, so that the deficiencies can be remediated. If the teacher still exhibits performance deficiencies after the support dialogue, they are placed on the 90-day performance probation. While on performance probation, the teacher is observed another four times after the initial observation. After the second, third and fourth observations, if the teacher has not remediated, the administration develops an improvement plan, which must be followed. The improvement plan gives the teacher assignments and assistance to aid him or her in remediating any deficiencies. Also, each teacher, regardless of whether placed on performance probation, receives an SPE, as well as a Summative Performance Evaluation Rating (“SPE Rating”) of either “Highly Effective,” “Effective,” “Developing/Needs Improvement,” or “Unsatisfactory.” In addition to the seven professional practice standards, a data component is also factored into the SPE Rating known as the VAM. The VAM As explained by Director of Research Services Dr. Aleksander Shneyderman (“Dr. S”), the VAM is a statistical model that attempts to measure a teacher’s impact on student learning growth through the use of a multi-level lineal regression. Dr. S has been working with the VAM, since its inception in 2010-2011. He has studied it and keeps abreast of Florida’s rules and regulations of how to calculate it. Dr. S and his office calculate what is called “Local VAM” for the School District. He also provides trainings to School District employees on the use of the VAM. Dr. S was tendered and accepted in this proceeding as an expert in VAM calculation. Local VAM is usually calculated in September/October by his office after the previous year’s testing data become available. Various assessments are used to create the Local VAM. It is calculated in compliance with state statutes, and the methodology is approved each year by FDOE. Also, the methods for calculating the Local VAM are bargained for and ratified by the United Teachers of Dade (“UTD”) teacher’s union. The Florida VAM is calculated by the State using a model that is approved by the Florida Commissioner of Education. The results of the Florida VAM are given to Dr. S’s office by the State. The Florida VAM is created using the Florida Standards Assessment (“FSA”). In the 2013-2014 and 2014-2015 school years, Respondent’s Local VAM scores were calculated by Dr. S’s office and based upon his students’ results on the Stanford 8 Achievement Test, 10th edition. UTD approved the methodology in VAM calculation for both of these years. For the 2015-2016 school year, Respondent’s VAM score was the Florida VAM in English language arts for fifth grade. The goal of the VAM is to measure a teacher’s effectiveness on student learning growth. In order to do this as accurately as possible, students are compared to similar students for an “apples to apples” comparison. Only students with the same demographic characteristics, as well as the same prior year’s test scores are compared to one another. The demographic factors considered are English Language Learner (“ELL”) status, gifted status, disability status, relative age (which considers whether a child was retained in a previous grade), and attendance (which was added in 2014-2015). Student demographics and the prior year’s test scores must be exactly the same. Based on these demographics and past scores, an expected score is created for each student. If the student exceeds that score, the credit for that success is given to the teacher. The School Board and Dr. S concede that the VAM does not account for every possible student performance variable, because, simply put, this would be impossible, since there are a limitless number of factors that could be considered. Moreover, certain factors are forbidden to be used by the Legislature, including socioeconomic status, race, gender, and ethnicity. (See § 1012.34, Fla. Stat.). Respondent argues that because not every imaginable factor that might affect a student’s grade is captured, that the VAM is not useful. Respondent claims that factors beyond the teacher might be causing poor performance, for example: lack of parental engagement. While levels of parental engagement could impact student performance, the School Board states that it is following state statutes to the letter and doing the best it can within the applicable statutory framework. Moreover, just as factors outside of consideration might hurt student performance, other factors might enhance performance, and the teachers receive those possible benefits as well--for example, if parental engagement is good. Those benefits would flow to the teacher, despite not having earned them through his or her personal efforts. Moreover, the VAM score ranges that are used to classify teachers are bargained for with UTD. The ranges have confidence intervals developed through the application of margin of error calculations that mitigate uncertainty to protect and “safeguard” teachers from unfair classifications. In many instances these safeguards give the teachers the benefit of the doubt to make sure they do not fall into the lowest category, which is “unsatisfactory.” Noticeably absent from these bargained for “safeguards” is any mention of how much instructional time a teacher must have with a class before those students’ data can be used to calculate a teacher’s VAM score. UTD has not bargained for any special rules designating when teachers can and cannot be held accountable for their class’ data based on the time they have instructed that class. As such, the only relevant inquiry is whether those students are with that teacher during the FTE period in February. Also, the law (see § 1012.34, Fla. Stat.) makes no mention of any minimum length of instructional time necessary to hold a teacher accountable for his or her students. The 2013-2014 School Year at Scott Lake Refusal to teach basic Spanish In May 2013, near the end of the 2012-2013 school year, Principal Rochelle advised Respondent that he would be teaching a kindergarten class for the 2013-2014 school year and that he would be required to teach them one hour of introductory Spanish. In an email to Principal Rochelle, Respondent asserted that he believed he was being assigned to teach Spanish to the kindergarteners in retaliation for his extensive reporting of student SCMs. In that same email, he advised her that he did not want to teach Spanish. Prior to being advised of this assignment, the School District conducted a language proficiency assessment for Respondent with both a written and verbal component, which he passed. Principal Rochelle had personally seen Respondent speak fluent Spanish to her school secretary and the art teacher. Because Respondent spoke fluent Spanish, or, at least, “conversational” Spanish (as admitted by Respondent’s counsel in his opening), she gave him the assignment. Moreover, as a principal, she had the right to assign Respondent as she saw fit. School Board Policy 3130 - Assignments reinforces this assertion stating, in relevant part, “Instructional staff members may be reassigned to any position for which they are qualified in order to meet needs of the District and pursuant to the collective bargaining agreement.” In order to teach the one-hour basic Spanish component of the class, Respondent did not need to be certified to teach Spanish. He only needed an elementary education certification, which he had. He even attended a training class on the implementation of the Spanish program. Respondent admits he can speak Spanish, write basic Spanish, has taken Spanish classes and passed the School District’s proficiency exam. Curiously, he objected to them giving the proficiency exam to him based on the grounds he was “singled out” for having a Hispanic last name, having been overheard speaking the language, and because he is not from a Spanish-speaking country. These are not reasonable objections when the School District explained the objective reasons listed above regarding Respondent’s qualifications to provide the basic- level Spanish instruction. Respondent persisted in his belief that he is “not qualified” to teach kindergarten Spanish despite all the evidence to the contrary. Respondent simply refused to do something that he was entirely capable of doing and that was within his ambit of responsibilities. He described one of the lessons he was allegedly incapable of teaching as follows, “You put a CD in the player. The kids sing songs in Spanish. The kids cut out pictures of objects and match them to a picture with the word in Spanish.” The kindergartners in his class did not speak Spanish; they spoke English. The Spanish component of the class was very basic and involved things like vowels, colors, puppets, basic books, and vocabulary words. Contrary to Respondent’s assertions, no complex grammar or sentence structure was involved. Such things are not even part of ordinary English kindergarten instruction, as admitted by Respondent. Moreover, he was provided with materials from which to draw the instruction. Principal Rochelle does not speak Spanish herself, yet believes she could teach the Spanish component, as it is a “piece of cake.” Respondent filed a grievance regarding the Spanish assignment. In order to appease and accommodate Respondent, Principal Rochelle eventually sent a Spanish teacher to his room to teach the Spanish component. However, Respondent then complained that the grades she was entering still had his name attached to them in the computerized grading system. Finally, the principal decided to move him to a first-grade class in early November 2013. Undoubtedly, the requests of Respondent led to this assignment change. Formal IPEGS observation On March 11, 2014, Principal Rochelle performed her formal observation of Respondent pursuant to IPEGS. On that day, no performance deficiencies were noted. However, throughout the year, Principal Rochelle had conducted many informal observations and walkthroughs of his classroom and had already provided him feedback regarding his performance and her expectations. Examples of that feedback can be found in an August 27, 2013, email from Principal Rochelle to Respondent. Moreover, according to Principal Rochelle, teachers tend to be on their best behavior during these observations–-which makes sense, because they know the boss/evaluator is watching. The formal observation is also only a snapshot in time of the teacher’s performance on a particular lesson; it is not a reflection of the entire year’s performance. Respondent has argued that Principal Rochelle has retaliated against him. If that were the case, this observation would have been a perfect opportunity to retaliate against him. However, she found no deficiencies in his performance on this day. Scott Lake SPE—Professional Practice Throughout the rest of the school year, Principal Rochelle made other credible observations regarding Respondent’s performance. Despite her counseling that he meet with parents, he refused to do so. He refused to participate in activities, including field trips, school celebrations, and award ceremonies. Other teachers actually had to hand out awards for him at the ceremony. He refused to implement group instruction techniques and did not take advantage of the presence of reading and math coaches. He refused to implement progressive discipline and “red, green, yellow” behavior management techniques. He refused to implement various discipline strategies laid out in the Student Code of Conduct and school-wide discipline plan prior to writing SCMs on students. Principal Rochelle recalls that he wrote approximately 25 SCMs on one student within the first nine weeks of school and made no attempt to address the behavior issues with the student’s parents. At one point Principal Rochelle accommodated his request to have a student removed from his class. Since this was only Principal Rochelle’s first full year as principal of Scott Lake, and she was still new to the school, she tended to give the teachers the benefit of the doubt when completing their SPEs. She also had a few teachers who had to be terminated for lack of professionalism that were more of a priority for her than Respondent. As such, she rated Respondent as “effective” in six standards on his SPE and as “developing/needs improvement” for the Communication standard. In her view, “effective” is akin to a “C” grade, whereas “highly effective” is “A plus/high B” status, “developing/needs improvement” is a “D,” and “unsatisfactory” is an “F.” When asked what Respondent would have rated himself in these seven standards, he testified he would have given himself five “highly effectives” and two “effectives.” He believes Principal Rochelle rated him lower than she should have as a result of retaliation against him for him not wanting to teach Spanish. This is Respondent’s second claim of retaliation against Principal Rochelle, and third claim of retaliation overall. Principal Rochelle’s denial of such retaliation is credited based upon her testimony at hearing and the exhibits offered in support. Despite the fact that Respondent’s 2013-2014 SPE seemed adequate to a casual observer (with the only obvious blemish being the “developing/needs improvement” in the Communication standard), when compared to his peers, a different story emerges. His professional practice points total put him in the bottom .8 percentile for all teachers district-wide and in the bottom 2.6 percentile for all first-grade teachers district-wide. Without belaboring the data, Respondent’s professional practice scores are at the bottom of the barrel, regardless of how you spin them. Scott Lake VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 12.5 points–-the lowest possible score. He was one of 11 first-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2013-2014 school year was “Needs Improvement.” Only 29 percent of his first-grade students met or exceeded their performance expectations. Respondent’s VAM was based on the performance of his first-grade students. Respondent believes that, since he was moved to the class in early November 2013, and the SAT exam was given in April, he should not be held accountable for their performance. In order for him to have a fair shake, he claims he would have had to be there instructing the students on week one. Respondent says the amount of time he was given was not fair because, “if I’m the lowest teacher in Miami-Dade County, and here for termination, no, sir, I don’t think it was fair.” If the rule Respondent proposes were implemented as policy, any teacher could simply avoid responsibility for their student’s performance by requesting a transfer sometime after the first week of the year. It is also not uncommon for teachers to have students added or subtracted from their classes throughout the year for a multitude of reasons. This is a fact of life that teachers have to be able to cope with in the ordinary course of business for the School District. Moreover, and somewhat ironically, if another teacher had been teaching Respondent’s students for a portion of the year, based on his SPE Ratings and student achievement data, Respondent probably would have had better scores. The students would likely have been getting a more effective teacher than he. Respondent also claims Principal Rochelle gave him a lower functioning group of students, who were behind in their learning. He explained that he knew they were low-functioning because he gave them “STAR tests” to gauge their ability levels. When pressed on cross-examination, Respondent admitted that he only tested his own students and never anyone else’s. Therefore, it would be impossible for him to know whether his students were any lower-functioning or further behind than any other teachers’ students. Respondent’s doubtful claim is further undercut by Principal Rochelle’s credible testimony that she selected the members of his first-grade class at random from overcrowded classrooms. Respondent’s claims that he was robbed of instructional time by field trips and fundraising activities, matters that are required of all teachers, are unconvincing excuses for his students’ poor performance. The 2014-2015 School Year at Norwood Shortly after the start of the 2014-2015 school year, Respondent requested a hardship transfer to Norwood Elementary School (“Norwood”) because the school day at Scott Lake was going to be increased by one hour. Despite the fact that he would have been compensated approximately $4,500.00 for this time, he chose to transfer schools. Principal Kevin Williams (or Dr. Williams) had a teacher on leave so he assigned Respondent to fill that gap. Respondent started teaching a kindergarten class, but was moved to a second-grade class during the first week of school. Prior to conducting a formal IPEGS observation of Respondent, Dr. Williams had performed several walkthroughs of his classroom. Based on these walkthroughs, Dr. Williams advised Respondent that he was not properly implementing the school discipline plan. Respondent also refused to implement “grouping” of the students during instruction time. Dr. Williams also had a reading coach model lessons for Respondent and assigned him a teaching assistant. Respondent was the only teacher who received this level of assistance. Dr. Williams even went so far as to have two meetings with UTD prior to his formal evaluation of Respondent in order to help him. By October 2014, Dr. Williams had already explained his expectations to Respondent. Formal IPEGS observation On October 1, 2014, Principal Williams performed the formal IPEGS evaluation of Respondent. Principal Williams noted no deficiencies on that day. Generally speaking, Principal Williams does not view these observations as punitive. Over the years, Dr. Williams has conducted approximately 240 observations of teachers, and, generally, the employees are “on point” when being watched. Moreover, like Principal Rochelle, Dr. Williams views these observations as a snapshot of teacher performance while the SPE captures the year- long performance. In the report of the observation, Dr. Williams suggested that Respondent promote interactions with students, encourage more student participation, connect to prior student knowledge and interests, and present concepts at different levels of complexity, among other items. Norwood SPE—Professional Practice After the formal observation, Dr. Williams continued to conduct walkthroughs of Respondent’s class. He observed the same issues with refusing to use “grouping” and refusing to properly implement the discipline plan. Respondent never took advantage of the modeling techniques that were provided for him. He also was not implementing differentiated instruction. Dr. Williams himself held a professional development class on campus for the school discipline plan, which, instead of attending, Respondent attended a social studies class off campus. Instead of following the prescribed discipline plan, Respondent was trying to control the behavior of his students with treats. Similar to his time at Scott Lake, he refused to participate in field trips, staff gatherings, award assemblies, and student activity days. Respondent had lesson plans, but did not always follow them. He would spend an inordinate amount of time on vocabulary. He gave some tests, but would refuse to grade other tests. The pattern of his teaching was inconsistent, at best. On his SPE, Principal Williams rated Respondent as “effective” in five standards, “highly effective” in one, and as “developing/needs improvement” for the Learning Environment standard. Dr. Williams’ rating for Learning Environment was lower because Respondent failed to implement appropriate discipline strategies despite being told to do so. In eight years of being a principal, this was the first time he had ever given a teacher a “needs improvement” rating. He mostly gives his teachers combinations of “highly effective” and “effective,” if they do what they are supposed to do. Nevertheless, Dr. Williams testified he still went easy on Respondent because he was new to the school. In terms of his SPE professional practice points, Respondent scored in the bottom two percentile for second-grade teachers district-wide and was the worst rated second-grade teacher at Norwood. Instead of following the discipline plan, Respondent was using the emergency call button, writing SCMs, and writing to the superintendent to have ten students removed from his class. Another teacher at the school, Mr. W, had the exact same set of students as Respondent, only he taught them in the afternoon and not in the morning. He had none of the same behavior management issues Respondent had with this same group of children. Respondent claimed that Mr. W was able to manage the children better because, like the students, he was African-American. When asked how Respondent would have rated himself in these seven SPE standards, he would have given himself six “highly effectives” and one “effective.” He believes Principal Williams rated him lower than he should have as a result of retaliation against him for writing SCMs and because he complained about the size of his initial kindergarten class. This marked Respondent’s fourth claim of retaliation overall. Principal Williams credibly denied such retaliation at the hearing. Norwood VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 8.75 points-–the lowest possible score, again. He was one of 50 first-grade teachers district-wide who scored the bare minimum putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only six percent of his second-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from Norwood should not be considered because of his students’ behavioral issues. He also stated he did not have enough textbooks to send home with students. Much like at Scott Lake, he believes he was intentionally given bad students. This is peculiar for two reasons. First, Dr. Williams first tried to assign Respondent another class, but Respondent complained that one was too big. To accept this argument, the viewer would have to believe Dr. Williams knew Respondent would reject the larger class, and the principal had another one in the wings filled with “bad” students to make Respondent look ineffective. Second, Mr. W had none of the same problems Respondent did with this same group of students in the afternoon. To accept this contention, Principal Williams’ plan only “worked” on Respondent, since he was singled out for retaliation. This line of argument is nonsensical, at best. The 2015-2016 and 2016-2017 School Years at Aventura Waterways K-8 In looking for the right fit, Respondent was sent to Aventura Waterways K-8 (“AWK8”) for the 2015-2016 school year. He remained there for the 2016-2017 school year until he was dismissed from his employment in March 2017. As at his previous school assignments, the administrators at AWK8 tried to work with Respondent and the UTD to let him know their expectations prior to the formal observations. During these two school years Respondent was observed formally by Principal Luis Bello and Assistant Principal Ileana Robles on no less than nine occasions. In both years, during his initial observations, his performance was found to be deficient; and he was immediately placed on support dialogue and, eventually, 90-day performance probation. During these two probationary periods, he was provided assistance through improvement plans and completed all his improvement plan assignments. The goal was to help him remediate his deficiencies. The only change he ever implemented was switching from block to weekly lesson plans. Both his instructional delivery and the learning environment never improved. During these observations, Principal Bello and Assistant Principal Robles both observed the same repeated deficiencies, which they described in meticulous detail at the hearing. Summarizing their testimony, the issues concerning Respondent were: Pacing. Respondent spends too much time on issues and did not complete entire lesson plans. Questioning students. Respondent only uses basic, easy to answer questions; does not ask enough questions; or is dismissive of questions. Failing to properly explain concepts to students or to activate prior knowledge. Respondent fails to prompt students in order to generate interest in the subject matter and holds no conversations about the material in class. Not using challenging enough material. Respondent’s material was so basic that parents were concerned their children were getting grades they did not deserve and not learning grade- appropriate material. Principal Bello described Respondent’s instruction as “robotic” and lacking any semblance of “passion.” AWK8—Professional Practice On his SPE, Principal Bello rated Respondent as “effective” in two standards, and “unsatisfactory” in five standards. Principal Bello’s ratings were in line with the repeated deficiencies discussed above. He awarded Respondent “unsatisfactory” ratings because Respondent never remediated his deficiencies. Principal Bello credibly stands by his SPE Ratings as honest and admits to spending a great deal of time on them. In terms of his SPE professional practice points for 2015-2016, Respondent scored in the bottom (0) percentile for fifth-grade teachers at AWK8, all teachers at AWK8, fifth-grade teachers district-wide, and all teachers district-wide. When asked what Respondent would have rated himself in these seven standards, he would have given himself seven “highly effectives.” He believes Principal Bello rated him lower than he should have been rated, but could not say why. AWK8 VAM and overall SPE Rating Respondent’s State VAM score for learner progress points was 8.5 points-–the lowest possible score, for the third year in a row. He was the only one of 98 fifth-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only 32 percent of his fifth-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from AWK8 are not legitimate for a variety of reasons, none of which relate to his own shortcomings. Respondent’s excuses and the reasons not to credit those excuses are as follows: Respondent argues that his VAM cannot be counted against him because his afternoon class of fifth graders were ELL, and they spoke a variety of languages, including French, Russian, Hebrew, Portuguese, Spanish, and Turkish. His theory was that they performed poorly because of their poor grasp of the English language. For VAM scoring purposes, this excuse should not be credited because the VAM already takes into account their ELL status by comparing them only to other ELL students with identical demographics and prior test scores; and they are not expected to perform as well as non-ELL students. However, by Respondent’s own admission his afternoon ELL class was the best class he had had in ten years of teaching. He said they had emotional balance, presence of mind, and good parental engagement. He even explained how his ESOL certification assisted him in understanding how to teach them. According to him, by the end of the year, the students were at the level where they would be having conversations. Respondent also had another ESOL-certified teacher assist him for a portion of the year, which was a standard practice. Finally, ELL students, who are brand new to the country, are not calculated into the VAM because there are no prior year scores for which they can be compared “apples to apples.” Respondent himself testified that the lowest level ELL students did not get graded. This makes sense because Respondent testified that his afternoon ELL class was 31 students-–yet only 15 ELL students were factored into the data used to calculate his VAM score for 2015-2016. In sum, the grades of the lowest English language functioning students were not even held against him. Respondent next argues that the numbers of students in both his morning and afternoon classes at AWK8 exceeded class size restrictions. Respondent “believes” his morning class had 24 or so students, but only 18 after the special education students were removed. When the student data is examined, it appears that Respondent only had 15 non-ELL students factored into his VAM score. As for the afternoon ELL class, otherwise considered by him the best class he has ever had, Respondent claims there were 31 in that class. Even assuming Respondent’s numbers are accurate (and they do not seem to be, given the VAM data), these class sizes do not run afoul of class size restrictions and are commonplace at AWK8. The School District operates on averages for class size compliance and everyone teaching fifth grade at AWK8 had similar class sizes. None of those other teachers had the same problems Respondent did. Moreover, Respondent reported the alleged class size violations to the FDOE, and they did nothing about it. Respondent further argues that his morning group of students was once again a “bad” group that did not give him a “fair shot.” According to Respondent, he had a student who would sit in a garbage can and another that would tell him “F_ _k you” every day. He had behavior concerns with four to five students in the morning class. Eventually, the student who sat in the garbage can was removed from the class. Respondent then testified that these behavior issues were exacerbated by his absence from the classroom when he was performing his improvement plan activities. He now appears to be placing his behavior concerns on the administration for doing their job by trying to assist him and by remediating his deficiencies. Behavior management is integral to being a teacher. A teacher must not be allowed to escape his or her own responsibility for performance shortcomings by blaming it on the students. At every school where Respondent has taught, he has admittedly written a large number of SCMs, had behavior issues with his students, and believes he was purposely given “bad” students. The only common thread among these schools is Respondent. Nevertheless, he refuses to acknowledge that he might possibly be even a part of the problem and believes he has done nothing wrong. Respondent also blames his poor VAM on the fact that fundraising activities, book fairs, student activity days, and dances all detracted from instructional time at AWK8. This is the same excuse he used for his poor VAM at Norwood and holds no weight, since these are activities that all teachers at all schools must cope with as part of the instructional process. Respondent’s Termination by the School Board Respondent’s case was the first of its kind brought pursuant to section 1012.33(3)(b) (“3-year provision”), since this was the first time the School District had the requisite number of years’ data available. Of the thousands of teachers working for Miami-Dade County Public Schools, Respondent was part of a singular group of seven to nine teachers who fell into the three-year provision of the statute having the necessary combination of “needs improvement” or “unsatisfactory” final overall SPE Ratings. Of that handful of teachers, Respondent was the single worst. Respondent’s performance actually declined each year despite the assistance provided for and made available to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 15th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of March, 2018. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430 1450 Northeast Second Avenue Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board Suite 912 1450 Northeast Second Avenue Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact At all times material hereto, Respondent was employed by the Petitioner as a special education teacher at Parkview Elementary School, pursuant to a continuing contract with the School Board of Dade County, Florida. On June 6, 1986, Respondent was arrested for possession of cocaine. On approximately September 20, 1986, the principal at Parkview Elementary School was contacted by a probation officer regarding Respondent. The principal immediately advised Petitioner's Area Office and Petitioner's Office of Professional Standards of the phone call. He summoned Respondent to his office and advised her of the telephone contact. Respondent admitted that she had been arrested for possession of a controlled substance. Respondent continued to teach at Parkview Elementary School through the end of that school year and, possibly, during the subsequent summer session. According to the principal, Respondent continued to do a "fine job" as a teacher. By letter dated August 28, 1987, Petitioner advised Respondent that the superintendent of schools would be recommending to the School Board of Dade County, Florida, at its September 9, 1987, meeting that the School Board suspend Respondent and initiate dismissal proceedings effective at the close of business September 9, 1987, for immorality and misconduct in office. At the same time, Respondent was assigned to work in the Area Office and was removed from her teaching responsibilities at Parkview Elementary School. As a result of Petitioner assigning Respondent to the Area Office, several teachers at Parkview and the President of the PTA at Parkview inquired of the principal as to why Respondent was not at the school. They were told that there was a problem with the Area Office which would hopefully be resolved. On September 9, 1987, the School Board of Dade County, Florida, suspended Respondent from her employment and approved the recommendation for dismissal. As a result of the Board's action, information regarding Respondent's arrest, suspension, and termination appeared in the newspaper. Before the newspaper story of September 13, 1987, regarding the Board's action on September 9, 1987, there was no public knowledge and no public notoriety regarding Respondent's arrest. Even the arresting officer, who was unable to identify Respondent as the person he arrested, believed the person he arrested to be unemployed. Although the Office of Professional Standards will consider many factors in deciding whether to recommend to the School Board the suspension and/or dismissal of a teacher who has been arrested, the recommendation to suspend and dismiss Respondent was based solely on her arrest. The Notice of Specific Charges filed in this cause contains allegations that Respondent was previously placed on probation for the felony offense of a worthless check, that Respondent failed to complete the conditions of probation relative to the worthless check charge, that Respondent was arrested and charged with possession of a controlled substance, and that Respondent failed to complete the conditions of probation relative to that charge. No evidence was offered, however, in support of the allegations regarding any arrest on a worthless check charge, regarding Respondent being placed on probation, regarding any terms of such probation, regarding her failure to fulfill those conditions, or of the disposition of the charge of possession of controlled substance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating the Respondent and awarding her back pay for the period of her suspension less any monies earned by the Respondent during that time. DONE and RECOMMENDED this 15th day of April, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4120 Petitioner's proposed finding of fact numbered has been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 1, 10, and 12 have been rejected as not being supported by the evidence in this cause. Petitioner's proposed findings of fact numbered 2, 3, 5-8, and 11 have been rejected as being unnecessary for determining the issues in this cause. Petitioner's proposed findings of fact numbered 4 has been rejected as being contrary to the evidence in this cause. Respondent's proposed findings of fact numbered 3-5 and 7 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1 and 2 have been rejected as not constituting findings of fact but rather as constituting conclusions of law. Respondent's proposed findings of fact numbered 6 has been rejected as being subordinate to the issues in this cause. COPIES FURNISHED: Joseph A. Fernandez, Superintendent School Board of Dade County Board Administration Building 1450 Northeast 2nd Avenue Miami, Florida 33132 Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William Du Fresne, Esquire 2929 Southwest 3rd Avenue Miami, Florida 33129 Madelyn P. Schere, Esquire Board Administration Building 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Edna Jane Bowman, should be terminated from her position as a teacher with the Duval County School Board (DCSB) for good cause, based on alleged incompetence, as that status is defined at Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (Tenure Act).
Findings Of Fact The Respondent has been a full-time "tenured" teacher for the School Board during the 2007-2008 and 2008-2009 school years and for a total of 28 years. She is certified by the State Department of Education in the area of Social Studies, grades five through nine, as well as other fields such has History (grades six through twelve). Like other teachers in the School District, her performance was evaluated annually by the principals of the schools where she taught. During the relevant school years, referenced above, the Teacher Assessment System (TAS) was the primary method used for evaluating teachers. John Williams has 39 years of experience in the field of K through 12 education and is the Board's Director of Professional Standards. He is familiar with the TAS and manages the District level officials who are responsible for proper administration of the TAS in teacher evaluation. The TAS measures teaching performance based on nine different "Competencies." These include: Promotes student growth and performance. Evaluates instructional needs of students. Plans and delivers effective instruction. Shows knowledge of subject matter. Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline. Shows sensitivity to student needs by maintaining a positive school environment. Communicates with parents. Pursues professional growth. Demonstrates professional behaviors. (See Petitioner's Exhibit 22, in evidence). Teachers are evaluated by a school administrator, typically the principal, based on two formal classroom observations, which are announced to the teacher ahead of time. The Teacher Assessment Instrument (TAI) is used to collect data and identify indicators associated with each competency criterion. In evaluating a teacher's performance, administrators or principals may also employ informal, unannounced observations and use the results thus obtained in evaluating the teacher's performance. The "Evaluation of Professional Growth of Teacher" is an evaluation form used during the final annual evaluation conference. The form reflects the teacher's final rating as to each competency area and also reflects the teacher's overall performance rating for the school year. The TAS delineates the steps in conducting a performance assessment or evaluation of the teacher beginning with an instructional session and a pre-observation conference and then proceeding with the observation process. If a teacher demonstrates deficient performance in any competency area, a "success plan" is written in collaboration with the teacher. Although the success plan may be implemented at any time, it must be implemented by February 1st of a given school year for teachers who have the potential to receive an overall annual rating of "unsatisfactory." A success plan identifies areas of weakness by competency category, sets out objectives to be achieved, and provides timelines to meet those objectives. A success plan team is assembled and, in addition to the teacher, it is typically composed of school administrators, teachers with expertise in a subject matter that the deficient teacher is struggling with, and "resources teachers" or "coaches." The various steps and procedures in conducting a success plan and success plan team effort is delineated in the TAS, shown in Petitioner's Exhibit 22, in evidence. Ms. Bowman worked at Jefferson Davis Middle School (Jefferson Davis) during the 2007-2008 school year. Mr. Addison Davis was principal of Jefferson Davis. Mr. Davis made multiple informal observations of Ms. Bowman's teaching and provided her with his opinions, based on his observations, including concerns he had about a lack of lesson plans and failure to implement a District-wide "workshop model." The workshop model requires classroom activities where small groups of students work collaboratively to complete an activity or project and achieve certain curriculum student standards. Mr. Davis explained that model is particularly effective for students whose primary language is not English. Several of such students were assigned to Ms. Bowman's classes during that school year. Principal Davis also noted that the Respondent did not provide students with academic and behavioral expectations, did not adequately assess student performance and failed to use student portfolios. He opined that he observed a disconnection between student needs and the instruction provided, intended to serve those needs. Mr. Davis also observed a lack of instruction in some instances, in which students were directed to sit down, be quiet, or read portions of a text book. Due to observed deficiencies, a Success Plan was put into place on November 8, 2007, with Ms. Bowman's input. The Success Plan outlined areas of weakness, objectives toward improvements in those areas, with timelines. The Success Team included experienced teaching coaches who were available to model appropriate instruction for Ms. Bowman on several occasions. Ms. Bowman opposed the Success Plan, viewing it as unnecessary, essentially as harassment by the School District's administration. She failed to attend any of the bi-weekly meetings which were held throughout the entire school year. Mr. Davis also conducted two formal observations on December 10, 2007 and January 30, 2008. He met with Ms. Bowman before each formal observation to set a date for the observation and to discuss the lesson plan to be observed. They discussed the data related to the lesson plan, showing the relevance of the lesson to student needs and showing how student learning would be assessed. Ms. Bowman, however, failed to provide any assessment data, and, in lieu of that information, she submitted a "District Learning Guide" from three years past, which was not sufficiently related to the 2007-2008 curriculum. During the formal observation, Mr. Davis witnessed a period of 25 to 30 minutes during class time when there was no instruction. He saw students asleep at their desks and some arguing between the teacher and several students. He observed that there was a continuing failure to implement the "Workshop Model" and to provide students with academic and behavioral expectations. He saw a lack of assessment of student performance and a failure to use student portfolios. There was a continued disconnection between student needs and the instruction being given, supposedly to serve their needs. Mr. Davis gave the Respondent a number of warnings about the above-referenced deficiencies, based upon his observations, and their post-observation conferences. He encouraged the Respondent to participate in her Success Plan but she continued to refuse to cooperate. Ms. Leslie Sarjeant was an instructional coach and Success Team Member. She corroborated the fact that Ms. Bowman rejected the Success Plan process and did not participate. Rather than participating in the Success Plan for her own remediation Ms. Sarjeant described Ms. Bowman as railing against what she believed were the ill motives of the DCSB in criticizing her performance and embarking on the Success Plan process, which she believed was a pre-conceived effort to terminate her. The TAI forms completed by Principal Davis, and others completed by Assistant Principal Torrence, showed Ms. Bowman's failure to demonstrate competencies in promoting student growth and performance, evaluating instructional needs, and planning and delivering effective instruction. Mr. Davis then issued a "Notice of Potential Unsatisfactory Performance" to the Respondent on January 2, 2008. The evaluation of the Respondent was issued on January 31, 2008, reflecting unsatisfactory performance in the following competency areas: promoting student growth and performance, planning and delivering effective instruction, and demonstrating professional behaviors. Mr. John Williams, a District administrator, issued a formal Notice of Unsatisfactory Performance on May 7, 2008. In accordance with DCSB policy, after a first such unsatisfactory rating, he gave the Respondent the option to transfer to another school. Ms. Bowman elected to transfer to Southside Middle School, to teach seventh grade Social Studies and Geography for the following school year, 2008-2009. Ms. Bowman introduced a satisfactory evaluation of her teaching by Principal Davis, for the school year 2005-2006, in order to attack his credibility concerning the testimony about the unsatisfactory performance. This evaluation was done shortly after Principal Davis had been assigned to Jefferson Davis, in December of 2005. She maintained that he changed his opinion only after she wrote a letter to a local newspaper critical of DCSB administration, concerning certain policies regarding student attendance, discipline, promotion, etc. She did not, however, criticize DCSB administrators, and particularly not Principal Davis personally. This contention is not persuasive because Ms. Bowman, in past years, had also made similar accusations that other school administrators/principals had retaliated against her by the use of performance evaluations. She, for instance, raised concerns in a memorandum to the DCSB's human resources office in which she contended that the administration was using her evaluations, in 2004, as a means of retaliation. The contention that Principal Davis was retaliating against her at Jefferson Davis Middle School because she wrote the letter to the local newspaper is less than credible, inasmuch as these other complaints as to retaliation, as to her past evaluations, arose in earlier school years (2004-2005), and the other referenced events at Jefferson Davis Middle School occurred before Principal Davis was ever assigned to that school. The principal at Southside Middle School (Southside) during 2008-2009 school year was Ms. Latanya McNeal. She has 14 years of experience in education, with eight years as a school administrator. Because the Respondent received an unsatisfactory evaluation for the prior year, and in light of her early observations of Ms. Bowman, Ms. McNeal initiated a Professional Development Plan (PDP) on August 28, 2008. Ms. Bowman signed acknowledgement of that plan. The PDP stressed the importance of: (a) maintaining and developing lesson plans based on student data/assessment of needs; (b) maintaining and using classroom materials tied to academic standards; (c) effectively using portfolios containing student work tied to curriculum and academic standards; and (d) continuous use of the workshop model. Although these were announced ahead of time, and despite Ms. Bowman's knowledge of the PDP and the Southside Classroom Observation Checklist, outlining duties she should perform, two subsequent informal observations on September 3, 2008, and September 24, 2008, revealed little progress toward the goals stated in the PDP. The observation checklists and "observation follow-up forms" for each observation showed the following deficiencies: "teacher needs to plan lessons that align to the standard"; "no instruction, students given worksheets, no connection to standard or text"; (c) "no workshop model, no evidence of portfolios"; (d) "no evidence of instruction"; (e) "presents a negative student/teacher environment . . .". After observation of these deficiencies on these occasions, a Success Plan for the Respondent was created and initiated on November 3, 2008. The Success Plan included all the concerns outlined in the PDP and focused on data-driven instruction, use of portfolios, assessment of student needs, measurement and explanation of student progress, and use of the CHAMPS program. The CHAMPS program is classroom management program used through out the School District. All teachers, including the Respondent, have been trained in its use. A "Success Plan Team" was established, consisting of Principal McNeal, other administrators and teachers, as well as a reading coach and an instructional coach. Regularly scheduled meetings were announced, held, and attended by most members of the team. The Respondent did not cooperate with the efforts of the Success Plan Team. At the first meeting she refused to speak about the plan, but insisted upon discussing and discrediting the evaluations of her by Principal McNeal. The Respondent was provided training and technical support with two computer programs, Compass Odyssey and FCAT Explorer. These are used to assess student needs and to track student progress. Despite the training and the need to use data to drive instruction, the Respondent never used either program or other student assessment programs. She acknowledged and expressed appreciation for the support and assistance provided to her by the Success Team members, but rejected the idea that instruction can be individualized based on student needs. The Respondent also failed to institute a portfolio system and refused to observe another teacher conducting a teacher-parent conference. As of January 30, 2009, five months into the school year, the Respondent had not yet submitted a five-day lesson plan, as required of every teacher at Southside. After conclusion of the Success Plan; Ms. Bowman complained that she was being singled out for purposes of termination. Although the Success Plan was noted as completed on February 25, 2009, Ms. Bowman did not integrate the plans, strategies, or objectives into her classroom instruction. Principal McNeal conducted two formal observations on December 22, 2008, and March 11, 2009. Before each formal observation she met with the Respondent to identify a date for a formal observation and to discuss the lesson plan to be observed, the data tied to it, showing student needs, the relevance of the lesson, and how student learning would be assessed. Implementation and use of portfolios, small group workshop models, and the CHAMPS program were also discussed. During the formal observations, Principal McNeal observed and documented on the TAI forms that no evidence of student portfolios existed. There was no evidence of differentiated/workshop instruction or data to guide instruction. There were incomplete grade books and no assessment of learning. There was no evidence of use of the CHAMPS program and it was noted that the Respondent engaged in "shouting matches" with students. She allowed one student to sleep throughout the observation, only to yell "wakeup" at the student when someone came to the door to pick the student up. A progress report, dated March 5, 2009, shows that a substantial number of Ms. Bowman's students were failing. The progress report shows that her students had only three graded items from January through March 5, 2009. One of these was an undefined "extra credit" entry. In her first class she had 16 students. Five of those students had F's and two had D's. In her second class she had 24 students with 13 having F's and two with D's. In another class of 28 students, nine had F's, four had D's, and two had no grades at all. See Petitioner's Supplemental Exhibits 32 and 33, in evidence. Although Principal McNeal discussed these and other concerns with Ms. Bowman, at the post-observation meetings, her concerns were unaddressed. Ample opportunity was given the Respondent during that school year to take part in training and workshops. The absentee report showed that 14 of Ms. Bowman's absences that school year were taken for training and workshops. She was also given the opportunity to have instructional and reading coaches come into her class, prepare lesson plans with her and model instruction for her. According to Ms. McNeal, however, as well as Instructional Coach Shakethia Butler, the Respondent rejected the idea of collaborating with others in planning and instruction. On March 13, 2009, Principal McNeal issued the Respondent's evaluation for the year. It showed unsatisfactory performance as to the following competencies: (a) promotes student growth and performance; (b) evaluates instructional needs of students; (e) utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (f) shows sensitivity to student needs by maintaining a positive school environment; and (g) communicates with parents. The Respondent received and signed that annual evaluation, but did not accept its contents and wrote a notation on the document to the effect that the evaluation was done on the second day of the FCAT testing and that the principal had not followed the evaluation schedule. However, both the Director of Professional Standards, John Williams, as well as Principal McNeal, established that observations are permitted on FCAT test days and that the FCAT had only been administered in the morning. That left the Respondent with more than three hours of instructional time in the afternoon during which she could be observed. Moreover, the conference form signed by Ms. Bowman on March 6, 2009, indicated her agreement with and approval of the March 11, 2009, observation date. As was the case with Principal Davis, the Respondent attacked the credibility of Principal McNeal, and the evaluation she prepared, with the argument that the evaluations were a pretext for retaliation against her based upon her "outspoken attitude." Ms. Bowman's work history shows a pattern of similar accusations of retaliation against several other principals at other schools where she taught. Thus, she accused the principal at Eugene Butler Middle School of giving her poor evaluations based upon "lies and revenge." She made accusations that she was retaliated against regarding matters concerning her evaluation for "being outspoken" and complained of being treated unfairly and harassed while at James Weldon Johnson Middle School. She accused the principal at yet another school, (J.E.B. Stuart Middle School) of conjuring up false evaluations of her based upon race discrimination, because, as she testified at hearing, discrimination had occurred "because everyone involved was African-American." She also made complaints, as found above, regarding her 2004-2005 teacher evaluations at Jefferson Davis Middle School as being based on retaliation. This was before Principal Davis was assigned to that school. In summary, the Respondent has demonstrated the above- found deficiencies in the competency areas referenced. This ultimately resulted in the two successive unsatisfactory evaluations, in two successive school years. The parties have stipulated that, under the Tenure Act, two successive unsatisfactory annual evaluations can provide grounds for termination of employment as a teacher. Moreover, when the above-found plans and efforts to help the Respondent improve her performance were inaugurated, the Respondent fairly consistently refused to cooperate with that performance improvement process.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Duval County School Board terminating the Respondent's employment as a teacher. DONE AND ENTERED this 12th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 12th day of January, 2010. COPIES FURNISHED: David J. D'Agata Assistant General Counsel General Counsel's Office City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Edna Jane Bowman 1043 Talbot Avenue Jacksonville, Florida 32205 Ed Pratt-Daniels, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.
Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
