The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 for Petitioner to suspend Respondent from his employment as a teacher for ten days without pay in Case No. 19-3380; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to terminate Respondent's employment as a teacher in Case No. 19-3381.
Findings Of Fact The Parties Petitioner is the entity charged with operating, controlling, and supervising all district public schools in Broward County, Florida, pursuant to article IX, section 4(b) of the Florida Constitution, and section 1012.33. Respondent is employed by the District as a mathematics teacher at Miramar High School ("MHS") pursuant to a professional services contract issued in accordance with section 1012.33(3)(a). He holds a professional educator's certificate in mathematics for 6th through 12th grades. Respondent was employed by the District in 2007, and has been a teacher at MHS since the 2007-2008 school year, with the exception of most of the 2015-2016 school year, during which he was administratively reassigned with pay pending the outcome of a personnel investigation. He returned to teaching at MHS for the 2016-2017 school year, and was a teacher at MHS during the 2018-2019 school year, when the conduct giving rise to these proceedings is alleged to have occurred. The Administrative Complaints February Administrative Complaint The February Administrative Complaint, which gives rise to Case No. 19-3380, alleges that during the 2017-2018 school year and the first semester of the 2018-2019 school year, Respondent engaged in conduct that violated specified statutes, DOE rules, and School Board policies. Pursuant to the February Administrative Complaint, Petitioner seeks to suspend Respondent from his employment as a teacher for ten days without pay. Specifically, the February Administrative Complaint alleges that after previously having been disciplined for making racially insensitive and inappropriate comments to students, Respondent continued to use embarrassing or disparaging language toward students. As a result, a cease and desist letter was issued to Respondent on or about March 23, 2017, directing him to cease engaging in such conduct. The Administrative Complaint alleges that Respondent continued to use racially insensitive, embarrassing, and disparaging language toward students—specifically, that he referred to an African-American male student as "boy." The February Administrative Complaint also alleges that Respondent threatened to remove students who talked from his class; graded students based on their behavior, rather than their work product; and failed to grade student work in a timely manner. As a result of this alleged conduct, Respondent received a meeting summary memorandum on or about December 7, 2017. The February Administrative Complaint alleges that Respondent still failed to contact the parents of students who were failing and engaged in unfair grading practices, resulting in issuance of another meeting summary memorandum to him on or about April 27, 2018. The February Administrative Complaint alleges that in the first semester of the 2018-2019 school year, during a Code Red Drill, Respondent is alleged to have engaged in racially insensitive conduct by disparately disciplining African-American students for engaging in the same type of conduct in which white and Hispanic students engaged, without any disciplinary consequences. The Administrative Complaint also alleges that during the Code Red Drill, Respondent was so disengaged from his students that he did not know one of his student's name and, consequently, wrote a disciplinary referral for the wrong student. The February Administrative Complaint alleges that Respondent engaged in conduct demeaning to students. Specifically, it is alleged that Respondent did not respond to student questions regarding how to do problems; embarrassed a student by saying he did not understand fifth grade math; and wrote "1 + 1" on the board to mock students in his class. He also allegedly reduced a student's class participation grade for talking. The February Administrative Complaint alleges that Respondent spoke to a "black girl who is Jamaican in Creole because he assumes she is Haitian." The February Administrative Complaint alleges that Respondent embarrassed and degraded a student by saying he did not understand the classwork "because it's not fifth grade math." The February Administrative Complaint also alleges that Respondent demeaned students by saying "'slick stuff,' such as 'math is simple and we are used to [second] or [fifth] grade math.'" The February Administrative Complaint alleges that Respondent lowered the grade of a student for talking, and told her that she and several other students were "on his 'watch list'" of students who would have their grades lowered for talking. The February Administrative Complaint further alleges that when that student asked about Respondent's grading practices, he responded "you ask too much questions," causing the whole class to laugh. The February Administrative Complaint alleges that on or about October 10, 2018, during the administration of the Preliminary Scholastic Aptitude Test ("PSAT"), Respondent did not follow proper testing protocol. Specifically, it is alleged that Respondent did not pick up the testing materials on time, started the test late, and did not read all of the directions to the students. It is also alleged that he did not collect book bags and cell phones and place them at the front of the room, and that a cell phone rang during the test. Additionally, he is alleged to have allowed students to talk loudly during the test. The February Administrative Complaint alleges that Respondent took points off of a student's grade for talking. The February Administrative Complaint alleges that Respondent refused to allow students who had missed class due to a band trip to make up their class work. The February Administrative Complaint alleges that Respondent made demeaning comments about students' writing; used the word "horrible" to describe their work, which made them feel "dumb or stupid"; was "disrespectful and sarcastic"; and deducted students' class participation points for talking or asking for a pencil or paper. The February Administrative Complaint alleges that Respondent talked to students in a demeaning manner about being "slow" and told students he thought the Chinese were smarter than Americans. May Administrative Complaint The May Administrative Complaint, which gives rise to Case No. 19-3381, alleges that in the second semester of the 2018-2019 school year, Respondent continued to engage in conduct that violated specified statutes, DOE rules, and School Board policies. Specifically, the May Administrative Complaint alleges that in February 2019, Respondent threatened to put tape over students' mouths for talking; disparaged students through racially insensitive treatment and comments; and made insulting and offensive comments to students regarding their mental health and ethnicity. The May Administrative Complaint also alleges that Respondent wrote a "red list" of students' names on the board who were disruptive or talking and continued to engage in inappropriate grading practices, such as lowering students' grades as a means of discipline for behavior issues. The May Administrative Complaint also alleges that Respondent continued his practices of not contacting parents of failing students; not writing referrals to deal with disciplinary matters; and failing to create a discipline plan for dealing with behavior issues in his classroom, as directed. In addition, the May Administrative Complaint alleges that Respondent claimed that during the past four years, Respondent's students were manipulated by an assistant principal, Ms. Hoff, to write false statements against him, notwithstanding that Hoff had not been employed at MHS for the previous two years. Pursuant to the May Administrative Complaint, Petitioner seeks to terminate Respondent's employment as a teacher. Stipulated Facts Regarding Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of disciplinary corrective actions while employed as a teacher with the District.8 On or about February 13, 2013, Respondent received a verbal reprimand for failing to meet the performance standards required of his 8 Petitioner's Corrective Action Policy, Policy 4.9, section I(b), states: The types of corrective action may include, but are not limited to the following employment actions: verbal reprimands, written reprimands, suspension without pay, demotion, or termination of employment. There are other types of actions to encourage and support the improvement of employee performance, conduct or attendance that are not considered disciplinary in nature. These actions may include, but are not limited to: coaching, counseling, meeting summaries, and additional training. Policy 4.9, Corrective Action. Respondent cannot be subjected to discipline in these proceedings for previous violations of statutes, rules, or policies for which he has already been disciplined. See Dep't of Bus. & Prof'l Reg., Case No. 11-4156 (Fla. DOAH Dec. 19, 2011; Fla. DBPR Oct. 2, 2012)(multiple administrative punishments cannot be imposed for a particular incident of misconduct). However, under Policy 4.9, section III, the history of disciplinary corrective actions is relevant to determining the appropriate penalty, if any, to be imposed in these proceedings, and history of disciplinary and non-disciplinary corrective actions is relevant to determining whether Respondent subsequently engaged in conduct constituting gross insubordination, as charged in these proceedings. position, by failing to follow School Board policy and procedures and engaging in unprofessional conduct. On or about May 30, 2013, Respondent received a written reprimand for not following proper procedures, and being insubordinate by failing to follow such procedures after numerous directives. Specifically, he failed to contact the parents of students who had been habitually truant or were failing his class; arrived late to work several times; lied about parking in the student parking lot; and left students unsupervised on multiple occasions. On November 8, 2016, Respondent received a verbal reprimand for not providing accommodations to his exceptional student education ("ESE") students; not taking attendance; not grading students’ work or grading students’ work inaccurately; and failing to provide feedback to students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. This five-day suspension resulted from a personnel investigation by the District police department into allegations that Respondent made racist and racially insensitive remarks to students. The request for the investigation was made on or about October 16, 2015. Respondent was administratively reassigned out of the classroom on November 6, 2015, and was not released from administrative reassignment until August 15, 2016. Respondent originally challenged the five-day suspension in Case No. 17-1179TTS, but later withdrew his challenge, and the case was closed on May 19, 2017. The Commissioner of Education ("COE") also filed an administrative complaint with the Education Practices Commission, based on Respondent making racially, ethnically, and/or socioeconomically-driven disparaging comments toward students. Respondent entered into a settlement agreement with the COE under which he received a written reprimand; was fined and placed on probation for one year; and was assessed costs for monitoring his probation. The written reprimand was placed in his District personnel file. On or about October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; grading inaccuracies; refusing to accept work; grading student behavior rather than student work product; failing to contact parents; failing to follow a discipline plan; failing to grade student work in a timely manner; entering incorrect grades; failing to provide ESE accommodations to students entitled to receive such accommodations; and making disparaging remarks about colleagues. This letter of reprimand resulted from a personnel investigation conducted by the District police department regarding numerous allegations against Respondent. These allegations included, but were not limited to, unfair grading practices; making embarrassing remarks to students; failing to provide feedback to students; lowering grades based on behavior; failing to contact parents; grading and attendance inaccuracies; providing fake lesson plans to his assistant principal; and making remarks to a student that a fellow math teacher did not know what she was doing. The request for the investigation was made on or about November 21, 2016. Respondent did not challenge the letter of reprimand. Stipulated Facts Regarding Non-Disciplinary Corrective Action History The parties stipulated to the following facts regarding Respondent's history of non-disciplinary corrective actions while he was employed as a teacher with the District. On or about July 16, 2011, Respondent received a concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures, and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 20, 2011, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records and follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On or about October 31, 2012, Respondent received another concerns and expectations memorandum for failing to follow the District’s grading system. On or about January 7, 2013, Respondent received another concerns and expectations memorandum for failing to follow and adhere to School Board and school policies, procedures and regulations; failing to maintain accurate student records of students and failing to follow the District grading system; and not fulfilling his responsibility as a professional educator in a timely manner, with integrity. On January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his class; and making students feel disparaged or embarrassed. He was directed to ensure that students understand his grading criteria for classwork and homework; use strategies to help students with new knowledge; use strategies to help students practice and deepen the new knowledge in all lessons and activities; and not intentionally expose students to unnecessary embarrassment or disparagement. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students; failure to contact parents or write referrals for behavior issues; and concerns about his failure to provide daily remediation. Respondent was advised that he was expected to create and maintain a positive and pleasant learning environment in the classroom; use effective instructional strategies and feedback techniques that do not embarrass students; create and follow a discipline plan for his classroom; contact parents when students are failing; write referrals for referable acts; and remediate and teach students daily. Respondent was informed that his failure to correct these issues may result in disciplinary action. On or about March 23, 2017, Respondent was issued a cease and desist letter for his continued use of embarrassing and disparaging language toward students. On or about December 7, 2017, Respondent received a meeting summary for his use of embarrassing and condescending language towards the students, by referring to an African-American male student as "boy"; threatening to remove students from his class if they misbehaved during a formal observation; grading students on their behavior rather than their work product; and failing to grade student work in a timely manner. He was directed to refrain from using condescending language that makes students feel inferior in math; learn his students’ names and refer to them by name; create and follow a discipline plan for his classroom without removing students unless they have completely disrupted the teaching and learning process in the classroom; enter grades in a timely manner and refrain from deducting participation points from students' grades for talking; and contact parents and write referrals for student misbehavior. On or about April 27, 2018, Respondent received a meeting summary memorandum for failing to contact parents of students who had D's or F's in his classes, and for keeping inaccurate grades. Findings of Fact Based on Evidence Adduced at Final Hearing Based on the preponderance of the competent substantial evidence; the following Findings of Fact are made regarding the conduct charged in the February Administrative Complaint and the May Administrative Complaint. February Administrative Complaint The February Administrative Complaint charges Respondent with having engaged in conduct during the first semester of the 2018-2019 school year that is alleged to violate statutes, DOE rules, and School Board policies. By way of background, Tevin Fuller and Julian Cardenty were students in Respondent's financial algebra class in the 2017-2018 school year. Both credibly testified that during a class in the 2017-2018 school year, Respondent called Fuller, who is African-American, "boy" and "bad boy." Both Fuller and Cardenty were offended by Respondent's use of the word "boy" in referring to Fuller, and considered it a racially demeaning remark. They reported Respondent's conduct to Assistant Principal J.P. Murray. Fuller credibly testified that as a result of Respondent's disrespectful conduct toward him, he avoided attending Respondent's class. As discussed above, in December 2017, as a result, Respondent previously had been issued a summary memorandum—a non-disciplinary corrective action—which instructed him to, among other things, cease using racially demeaning terms toward African-American students, and cease using condescending language that made students feel inferior regarding their mathematical ability. The credible, consistent evidence establishes that during the first semester of the 2018-2019 school year, Respondent continued to make racially insensitive and demeaning comments, and engage in conduct directed toward students in his classes that they found embarrassing and offensive. Specifically, several students testified, credibly, that on one occasion during the 2018-2019 school year, after Respondent gave an unannounced quiz to his financial algebra class, he stated that he would not grade the quiz papers because he could "see the F's on their foreheads," or words to that effect. The credible evidence establishes that the students considered this remark as demeaning to their ability and intelligence, and they were offended. This testimony corroborated several written statements, admitted into evidence, which were provided by students at or about the time this incident took place. Two students, Malik Cooper and Nyesha Dixon, credibly testified that they witnessed Respondent belittle and mock a student, Jordan Lee, when he asked for assistance on a class assignment in Respondent's financial algebra class. Specifically, they saw and heard Respondent comment to Lee that he (Lee) did not understand the lesson because he could "only understand fifth grade math," or words to that effect. Dixon and Cooper both credibly testified that the whole class laughed at Respondent's comment to Lee. Dixon testified, credibly, that Lee appeared shocked and embarrassed by Respondent's comment. Although Petitioner did not present Lee's testimony at the final hearing, Lee provided a written statement that was admitted into evidence, describing this incident. An email from Lee's mother to Murray regarding this incident corroborates Dixon's and Cooper's testimony and Lee's reaction to Respondent's insulting comment to him. Two students, Breanna Dwyer and Malik Cooper, credibly testified that on one occasion, Respondent told his students that the Chinese were smarter and learned faster than Americans, a comment that the students interpreted as belittling their intelligence. Two students, Dorcas Alao and Nyesha Dixon, testified, credibly, to the effect that Respondent singled out Haitian students and made remarks to them, which those students found offensive. Specifically, they testified that Respondent would attempt to speak to Haitian students in Creole, that the students told him they found his behavior offensive, and that Respondent would "just laugh." Several students credibly testified, in more general terms, that Respondent frequently spoke down to them, treated them in a condescending manner, made rude remarks to them, and was disrespectful toward them, and that his conduct and remarks were insulting and made them feel as if they were ignorant and unintelligent. Additionally, one student, Whitney Malcolm, testified, credibly, that in response to her asking a question about a syntax error on a calculator, Respondent yelled at her loudly enough for the entire class to hear. Malcolm testified, credibly, that she was embarrassed by the incident. The credible evidence establishes that Respondent continued to lower students' academic course grades as a means of addressing behavioral issues, notwithstanding that he had been issued a meeting summary on April 27, 2018, directing him not to do so. Specifically, several students testified, credibly, that Respondent kept a "watch list" of students for whom he deducted points off their academic course grade for behavioral issues, such as talking in class. Murray credibly testified, and the MHS Faculty Handbook for the 2018-2019 school year expressly states, that student misbehavior cannot be reflected in the academic course grade, and, instead, is to be addressed in the conduct grade. Murray testified that he counseled Respondent numerous times on this issue and directed him to cease deducting points from students' academic course grades for behavior issues. The evidence regarding Respondent's history of disciplinary and non-disciplinary corrective actions bears out that he repeatedly has been directed not to lower students' academic course grades as a means of dealing with classroom behavioral issues. The competent substantial evidence also establishes that Respondent did not follow proper testing protocol when administering the PSAT to his homeroom students on October 10, 2018. Specifically, notwithstanding that all teachers, including Respondent, who were administering the PSAT had been given training and provided written instructions regarding picking up the exams, reading the instructions to the students, and administering the exams, Respondent did not timely pick up the exams on the day it was administered. The exams for his homeroom students had to be delivered to the room in which he was to administer the exam, and as a consequence, he was late starting the exam administration. The credible evidence establishes that Respondent instructed the students to turn off their cell phones, place them in their book bags, and put their book bags away. However, he did not collect students' book bags or require students to place their book bags at the front of the room, as expressly required by the exam proctor reminders document and the PSAT/NMBQT Coordinator Manual, both of which previously had been provided to the teachers, including Respondent, who were administering the PSAT. As a result of Respondent's failure to follow exam protocol, the students kept their book bags next to, or under, their desks, in violation of that protocol. A cell phone rang during one of the testing sessions. The persuasive evidence establishes that Respondent had instructed students to silence their cell phones and put them away; thus, the cell phone ringing during a testing session was the result of a student failing to follow instructions, rather than Respondent failing to provide such instructions. Two teachers, Tamekia Thompson and Richard Cohen, went to Respondent's classroom at different times on the day the PSAT was administered, to tell the students in his classroom to be quiet. Amaya Mason, a student in Respondent's homeroom class who took the PSAT that day, complained in a written statement, and subsequently testified, that students were talking during the testing sessions, while the students were in the process of taking the exam. Other students who took the PSAT in Respondent's homeroom class that day testified that students did not talk during the testing sessions, but that they did talk loudly during breaks between the testing sessions. Thus, the evidence does not definitively establish that students were talking during the testing sessions themselves. As a result of these testing protocol irregularities, Alicia Carl, the Student Assessment Specialist at MHS, contacted the College Board regarding the testing conditions in Respondent's classroom. Ultimately, the students' exam scores were not invalidated. The February Administrative Complaint alleges that Respondent refused to allow two students, Dejah Jeancharles and Asia Parker, to make up classwork they had missed, notwithstanding that they had excused absences due to a band trip. However, the credible evidence established that Respondent ultimately did allow the students to make up the missed work. The February Administrative Complaint charges Respondent with disciplining African-American students during a Code Red Drill conducted on or about September 6, 2018, while not subjecting white and Hispanic students to discipline for engaging in the same conduct during the Code Red Drill. The students' testimony regarding whether Respondent engaged in this conduct was conflicting, and the greater weight of the competent, credible evidence fails to establish that Respondent engaged in this behavior. The February Administrative Complaint alleges that on or about April 27, 2018, Respondent was issued a meeting summary for failing to contact parents of failing students and engaging in unfair grading practices. Murray testified, and Petitioner presented excerpts of Respondent's grade book showing, that as of March 6, 2018, approximately 75 percent of Respondent's students were earning either D's or F's in Respondent's classes. Murray testified that MHS has a policy, stated in the 2018-2019 Faculty Handbook, that teachers "shouldn't have that many D's or F's."9 Murray testified, and Petitioner presented evidence consisting of an email from Murray to MHS Human Relations Specialist Nicole Voliton, stating that he (Murray) had spoken to parents, who told him that Respondent had not contacted them regarding their children's failing grades. Murray also testified that Respondent acknowledged to him that he had not 9 However, the February Administrative Complaint does not specifically charge Respondent with conduct related to the amount of D's and F's his students earned. Additionally, as discussed below, the Faculty Handbook policy does not establish a mandatory compliance standard regarding the amount of D's and F's given students on which disciplinary action can be based. contacted the parents of all students who were failing his courses. Murray's email and his testimony regarding parents' statements made to him constitute hearsay evidence that has not been shown to fall within an exception to the hearsay rule in section 90.802, Florida Statutes, and is not substantiated by any competent substantial evidence in the record; accordingly, the undersigned cannot assign weight to this evidence.10 May Administrative Complaint The May Administrative Complaint charges Respondent with having engaged in conduct in the second semester of the 2018-2019 school year that is alleged to violate DOE rules and Petitioner's policies. The credible evidence establishes that Respondent continued to engage in conduct, directed toward his students, that was demeaning and racially insensitive. Specifically, several students submitted written statements that in February 2019, Respondent threatened to tape students' mouths shut because they were talking in class. Students Dorcas Alao, Breanna Henry, and Darius Gaskin credibly testified about this incident, confirming that Respondent had engaged in such conduct toward students in his class. Alao, who is of Nigerian heritage, testified, credibly, that Respondent remarked to her that if she couldn't understand something in English, he would "say it in Yoruba," or words to that effect. She also testified, credibly, that Respondent told her that she had "mental issues." She was offended by Respondent's comments and reported the incidents to Murray. The credible evidence also establishes that Respondent continued to deduct points from students' academic course grades for behavioral issues, such as talking in class. 10 § 120.57(1)(c), Fla. Stat. (hearsay evidence may be used for the purpose of supplementing or explaining other evidence but is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. The burden of establishing that hearsay evidence falls within an exception to the hearsay rules in sections 90.803 and 90.804 is on the proponent of the hearsay. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)(evidentiary proponent has burden to establish predicate for exception to hearsay rule). To this point, Alao and Henry credibly testified that Respondent deducted points from their academic course grades for talking in class. Murray corroborated this testimony, credibly testifying that he examined Respondent's grade book and confirmed that Respondent had deducted points from their grades. As a result, Henry's class grade dropped a letter grade, from an "A" to a "B." Several students also testified, credibly and consistently, that Respondent did not timely grade their classwork or homework papers, so they were unable to determine what their grades were, even when they accessed the Pinnacle electronic gradebook. The 2018-2019 Faculty Handbook for MHS expressly requires that grades be posted within 48 hours of collecting the assignment/test. Respondent has repeatedly been directed to timely and accurately grade classwork and homework, and to record the grades in Pinnacle so that students and parents can be apprised of student progress in the course. The disciplinary and non-disciplinary corrective actions to which Respondent previously has been subject bear this out. Murray testified, credibly, that in the second semester of the 2018-2019 school year, Respondent still did not timely or accurately grade classwork, homework, or tests, as required by the Faculty Handbook, and as previously directed through disciplinary and non-disciplinary corrective actions, discussed above. The May Administrative Complaint also alleges that Respondent made claims that former assistant principal Cornelia Hoff had manipulated students, during the previous four years, to write false statements about him. Murray testified, credibly, that Respondent did, in fact, make such claims. There was no evidence presented to substantiate any of Respondent's claims against Hoff, and the competent substantial evidence establishes that Hoff had not been employed at MHS for over two years at the time Respondent made such claims. The May Administrative Complaint also charges Respondent with failing to contact parents, write disciplinary referrals, and create a discipline plan for student behavior issues in his classroom, as previously directed. However, Petitioner failed to present any competent substantial evidence to substantiate the allegation that Respondent engaged in this specific conduct during the second semester of the 2018-2019 school year, which is the period covered by the May Administrative Complaint.11 Thus, Petitioner did not demonstrate that Respondent engaged in this conduct during the timeframe covered by the May Administrative Complaint. Witness Credibility Respondent contends, on the basis of inconsistencies between student witness's testimony and written statements regarding various details of Respondent's alleged conduct and surrounding circumstances, that these witnesses were not credible, so that their testimony should not be afforded weight in these proceedings. The undersigned rejects this contention. Although the students' accounts of Respondent's conduct and surrounding circumstances were not uniformly consistent, the inconsistencies concerned minor or collateral details, which the undersigned ascribes to the fact that the students were testifying about incidents that occurred as much as two years earlier. The undersigned found the student witnesses to be credible and persuasive. Crucial to this credibility determination is that the students' testimony was remarkably consistent with respect to whether Respondent 11 The evidence presented regarding this charge concerned conduct that is alleged to have occurred in the first semester of the 2018-2019 school year, which is not addressed in the May Administrative Complaint. Notably, the February Administrative Complaint, which addressed conduct that is alleged to have occurred in the 2017-2018 school year and the first semester of the 2018-2019 school year, did not charge Respondent with having engaged in such conduct. See Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint violates the Administrative Procedure Act). engaged in, and the significant circumstances pertaining to, the conduct at issue in these proceedings. Findings of Ultimate Fact Under Florida law, whether conduct charged in a disciplinary proceeding constitutes a deviation from a standard of conduct established by statute, rule, or policy is a question of fact to be determined by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether conduct alleged in an administrative complaint violates the statutes, rules, and policies cited as the basis for the proposed disciplinary action is a factual, rather than legal, determination. February Administrative Complaint Here, Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the February Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules, School Board policies, and Florida Statutes. Rule 6A-5.056(2) – Misconduct in Office As found above, Respondent made racially insensitive comments and comments that demeaned and belittled students in his classes. The evidence also established that Respondent yelled at students. As a result, many of his students felt disrespected, embarrassed, and offended. One student, Tevin Fuller, even went so far as to avoid going to Respondent's class in order to avoid Respondent's harassment and disrespectful treatment of him. Respondent's behavior toward his students constituted misconduct in office under Florida Administrative Code Rule 6A-5.056(2), because it disrupted the students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office, pursuant to rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes a teacher's professional obligations to students. Specifically, in making demeaning, racially insensitive, and embarrassing comments to students in his classes, he failed to make reasonable effort to protect his students from conditions harmful to their learning and mental health, in violation of rule 6A-10.081(2)(a)1. He also intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5., and harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and disrespectful comments toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because they violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and in engaging in disrespectful conduct toward his students, Respondent failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed above, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Additionally, as found above, Respondent did not follow established exam protocol when he failed to collect students' book bags and place them at the front of the room during administration of the PSAT to his homeroom class on October 10, 2018, as specified in the PSAT/NMSQT administration manual and mandated pursuant to section 1008.24(1)(f), Florida Statutes. Thus, Respondent failed to perform duties prescribed by law, which constitutes incompetency due to inefficiency under rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language toward students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the District's professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, Respondent received a meeting summary for making racially insensitive comments to a male African-American student. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive, demeaning, and disrespectful comments to his students during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the February Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non- disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination under rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional12 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive and demeaning comments, and engaging in disrespectful conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing 12 "Intentional" is defined as "done with intention" or "on purpose." Dictionary.com, https://dictionary.com (last visited Apr. 21, 2021). The evidence establishes that Respondent's actions in this regard were done with intention or on purpose; there was no evidence presented from which it reasonably can be inferred that Respondent's actions in this regard were accidental. students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. Section 1008.24 – Test Administration and Security Based on the facts found above, it is determined that Respondent did not follow testing protocol when he failed to collect students' book bags before administering the PSAT on October 10, 2018. However, in order to violate section 1008.24, the failure to follow test administration directions must be done both "knowingly and willfully." Neither "knowingly" nor "willfully" are defined in chapter 1008. Where the legislature has not defined the words used in a statute, the language should be given its plain and ordinary meaning.13 The term "knowingly" is defined as "having knowledge or information"14 or "deliberate, conscious."15 The term "willfully" is defined as "deliberate, voluntary, or intentional."16 The evidence fails to establish that Respondent made the deliberate decision not to collect the book bags, notwithstanding the test manual and exam directions. From the evidence in the record, it is equally reasonable to infer17 that he either did not realize that he needed to collect the book bags, 13 Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009). It is appropriate to refer to dictionary definitions when construing a statute in order to ascertain the plain and ordinary meaning of words used in the statute. Id.; Barco v. School Bd. of Pinellas Cty., 975 So. 2d 1116, 1122 (Fla. 2008); see also Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000)(when necessary, the plain and ordinary meaning can be ascertained by reference to a dictionary). 14 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). 15 Black's Law Dictionary, Deluxe 7th ed., at p. 876. 16 See id. at p. 1593, describing "willful" or "willfully" as meaning "only intentionally or purposely as distinguished from accidentally or negligently." 17 See Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985)(it is the presiding officer's function to, among other things, draw permissible inferences from the evidence). or that he simply forgot to do so. The latter inference is particularly plausible, given that he was running late in beginning administration of the test. Thus, it is found that Respondent did not violate section 1008.24, as charged in the February Administrative Complaint. School Board Policy 4008 - Responsibilities and Duties (Principals and Instructional Personnel) As discussed above, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 6314 – Testing – Assessing Student Achievement School Board Policy 6314, the text of which is set forth in the Conclusions of Law, below, establishes a District-wide policy regarding annual achievement testing. The plain language of the policy states, in pertinent part, "[a] program of achievement testing shall be conducted annually . . . ," and "[t]esting within the Broward County School District should be conducted to . . . [p]rovide parents/guardians with a yearly individual student test report and interpretation for those students who have been tested." Policy 6314, at preamble, ¶ 2 (emphasis added). From this language, it is clear that Policy 6314 is specifically directed toward annual achievement testing, rather than routine classroom tests and quizzes. Further to this point, nowhere in Policy 6314 is there any language establishing a prohibition on giving unannounced class quizzes, or deciding not to count quiz grades in a class. Additionally, although the February Administrative Complaint cites Policy 6314 as a basis for imposing discipline, the policy does not establish any specific standards of conduct to which instructional personnel must adhere, or which can constitute the basis of disciplinary action for lack of compliance. Petitioner's Proposed Recommended Order cites Policy 6314 as a basis for imposing discipline on Respondent for having given an unannounced quiz in his class on material that he allegedly had not yet taught his class, and then deciding not to grade the quiz "because he could 'read the F's on their foreheads.'" However, as discussed above, the language of Policy 6314 makes clear that it does not apply to routine class tests and quizzes. Additionally, the February Administrative Complaint does not specifically charge Respondent with having engaged in any of this conduct. As discussed herein, Respondent cannot be disciplined for conduct which was not specifically charged in the Administrative Complaint.18 Therefore, even though credible testimony and other evidence was provided showing that Respondent engaged in this conduct, that evidence is relevant only with respect to whether Respondent made demeaning comments to his students. That conduct was charged in the February Administrative Complaint, and, as discussed herein, has been considered in determining that Respondent engaged in conduct constituting misconduct in office, pursuant to rule 6A-5.056(2). School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be 18 Cottrill, 685 So. 2d at 1372 (Fla. 1st DCA 1996). See note 11, supra. violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct established in statutes, DOE rules, and School Board policies. In this case, Respondent has been charged with "Category B" offenses under Policy 4.9. Section III of Policy 4.9, titled "Other Considerations," sets forth a non-exhaustive list of circumstances that may be considered in determining the appropriate penalty for Category B offenses. The racially insensitive and demeaning comments that Respondent repeatedly made to his students, over a substantial period of time in his employment with Petitioner, constitute a severe offense. The evidence establishes that Respondent's comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher—to the point that one student avoided going to class in order to avoid Respondent's racially insensitive and disrespectful conduct toward him. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct, negative impacts on his students. Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He previously has received two verbal reprimands, two written reprimands, and a five-day suspension without pay. Additionally, he has received numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, he has received approximately 14 corrective actions, five of which were disciplinary, between July 2011 and November 2018. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the February Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined or issued non- disciplinary corrective actions. The competent, credible evidence shows that these corrective actions have had little, if any, deterrent effect on Respondent's conduct. Based on the foregoing Findings of Fact, it is determined that Respondent should receive a ten-day suspension without pay in Case No. 19-3380, for having engaged in conduct that was charged in the February Administrative Complaint and proved by a preponderance of the competent substantial evidence. May Administrative Complaint Petitioner demonstrated, by the preponderance of the evidence, that Respondent engaged in conduct with which he was charged in the May Administrative Complaint. As discussed below, Respondent's conduct violated DOE rules and School Board policies. Rule 6A-5.056(2) – Misconduct in Office As found above, in the second semester of the 2018-1019 school year, Respondent continued to make racially insensitive and disparaging comments, and engage in demeaning and disrespectful conduct, directed toward his students. Specifically, he directed racially insensitive comments toward an African-American student, Dorcas Alao, regarding her language and ethnicity. As discussed above, Alao found Respondent's conduct offensive. Respondent's conduct in this regard constituted misconduct in office, pursuant to rule 6A-5.056(2). Specifically, it disrupted his students' learning environment, in violation of rule 6A-5.056(2)(d), and it reduced his ability to effectively perform his teaching duties, in violation of rule 6A-5.056(2)(e). Additionally, Respondent's behavior toward his students constituted misconduct in office under rule 6A-5.056(2)(b), because it violated rule 6A-10.081(2)(a), which establishes his professional obligations to students. Specifically, in making racially insensitive and demeaning comments, he failed to make reasonable effort to protect his students from conditions harmful to their learning and to their mental health, in violation of rule 6A- 10.081(2)(a)1.; he intentionally exposed students to unnecessary embarrassment and disparagement, in violation of rule 6A-10.081(2)(a)5.; and he harassed students on the basis of race, color, and national or ethnic origin, in violation of rule 6A-10.081(2)(a)7. Respondent's racially insensitive and demeaning comments and disrespectful conduct toward his students also constituted misconduct in office under rule 6A-5.056(2)(c), because it violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, Respondent did not comply with paragraph 1. of Policy 4008.B., because he violated the Principles of Professional Conduct of the Education Profession in Florida, rule 6A-10.081, as discussed herein. Additionally, Respondent violated paragraph 4. of Policy 4008.B., because he did not treat all students with kindness and consideration, as required by that policy. Respondent's conduct in making unsubstantiated accusations against former assistant principal Hoff constituted misconduct in office because it violated rule 6A-10.081(2)(c)5., which establishes the professional standard that an educator shall not make malicious or intentionally false statements about a colleague. Although the evidence does not establish that Respondent's accusations about Hoff were malicious—i.e., characterized by, or showing malice, intentionally harmful, or spiteful19—it is reasonable to infer that they were intentionally false, given that Hoff had not been employed at MHS for over two years when Respondent made those accusations, and that Murray had succeeded Hoff as Respondent's supervisor. Rule 6A-5.056(3) – Incompetency In making racially insensitive and demeaning comments, and engaging in disrespectful conduct, toward his students, Respondent also failed to discharge his required teaching duties. Specifically, in making such comments and engaging in such conduct, Respondent failed to communicate appropriately with, and relate to, his students, and, thus, exhibited incompetency as a result of inefficiency, pursuant to rule 6A-5.056(3)(a)2. As discussed herein, Respondent's conduct also violated rule 6A-10.081(2)(a)1., 5., and 7., and, thus, constituted incompetency due to inefficiency, pursuant to rule 6A-5.056(3)(a)1. Rule 6A-5.056(4) – Gross Insubordination As found above, on January 23, 2015, Respondent received a meeting summary regarding grading criteria; students not learning in, and failing, his courses; and making students feeling disparaged or embarrassed. On October 14, 2016, Respondent received a summary memorandum for his use of embarrassing language towards students. On February 7, 2017, Respondent received a five-day suspension for making racially insensitive and inappropriate comments to students. On March 23, 2017, Respondent was issued a cease and desist letter for his use of embarrassing and disparaging language toward students. On October 27, 2017, Respondent received a letter of reprimand from the School Board’s professional standards committee for making embarrassing remarks to students. On or about December 7, 2017, 19 Dictionary.com, https://dictionary.com (last visited Apr. 22, 2021). Respondent received a meeting summary for making racially insensitive comments to a male African-American student. Additionally, as discussed herein, the undersigned recommends that Respondent be suspended without pay for ten days in Case No. 19-3380, for continuing to engage in such conduct during the timeframe covered by the February Administrative Complaint. This ten-day suspension constitutes yet another disciplinary corrective action against Respondent for continuing to engage in conduct about which he repeatedly has been admonished, and has been directed to cease. In each of these corrective actions, Respondent was specifically and expressly directed to cease engaging in specified conduct. These directives were directly based on school and School Board policies and DOE rules, and, thus, were reasonable in nature. The directives were given by his supervisors at MHS and Petitioner, all of whom had proper authority to issue such directives. As found above, Respondent continued to make racially insensitive and demeaning comments and engage in disrespectful conduct toward his students during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). As found above, Respondent continued to lower students' academic course grades as a means of dealing with classroom behavioral issues during the timeframe covered by the May Administrative Complaint, after repeatedly having been directed not to do so through disciplinary and non-disciplinary corrective actions. Respondent's conduct in this regard constitutes gross insubordination, pursuant to rule 6A-5.056(4). Rule 6A-5.056(5) – Willful Neglect of Duty "Willful neglect of duty" is defined in rule 6A-5.056(5) as the intentional20 or reckless failure to carry out required duties. In continuing to intentionally engage in unauthorized grading practices by lowering students' academic course grades to address behavioral issues, Respondent engaged in willful neglect of duty. In continuing to intentionally make racially insensitive, demeaning, and disrespectful comments and conduct toward his students, Respondent failed to comply with authority that establishes required duties. Specifically, Respondent's conduct did not comply with School Board Policy 4008.B.4., requiring that he treat students with kindness and consideration. Additionally, his conduct did not comply with rule 6A-10.081(2)(a)1., 5., and 7., requiring that he make reasonable efforts to protect students from conditions harmful to learning; refrain from exposing students to unnecessary embarrassment or disparagement; and refrain from harassing or discriminating against students on the basis of race, national origin, or ethnicity. School Board Policy 4008 – Responsibilities and Duties (Principals and Instructional Personnel) As discussed herein, Respondent's racially insensitive, demeaning, and disrespectful comments toward his students violated School Board Policy 4008.B., regarding duties of instructional personnel. Specifically, as discussed herein, Respondent did not comply with rule 6A-10.081, the Principles of Professional Conduct of the Education Profession in Florida, as required by paragraph 1. of Policy 4008.B. Additionally, Respondent did not treat all students with kindness and consideration, as required by paragraph 4. of Policy 4008.B. School Board Policy 4.9 – Corrective Action Petitioner also alleges that Respondent "violated" School Board Policy 4.9, titled "Corrective Action," as a basis for its proposal to terminate his employment. As previously discussed and further addressed in the Conclusions of Law, below, Policy 4.9 does not establish a separately enforceable standard of conduct which may be violated for purposes of serving as the basis for discipline, but, rather, constitutes a policy designed to improve and/or change employee's job performance and conduct, as well as establishes Petitioner's progressive discipline policy for purposes of determining the appropriate penalty range for violations of applicable standards of conduct. The racially insensitive and demeaning comments that Respondent made to his students, repeatedly, over a substantial period of his employment with Petitioner, constitute a severe offense. The evidence establishes that his comments not only offended and embarrassed his students, but also affected his effectiveness as a teacher. Additionally, Respondent's conduct in lowering students' academic course grades to deal with behavioral issues, directly contrary to school grading policy set forth in the MHS Faculty Handbook, was severe, in that it inappropriately affected students' course grades in a negative manner. Moreover, Respondent's students were directly involved in, and affected by, his conduct. To this point, Respondent's racially insensitive and demeaning comments and disrespectful conduct was directed to his students, who were offended and embarrassed by his comments and conduct. Additionally, his students' grades were directly and negatively affected by Respondent's practice of lowering academic course grades to address behavioral issues. Respondent's conduct had direct and negative impacts on his students. As discussed above, Respondent has a lengthy corrective action history during his employment with Petitioner, dating back to 2011. He has previously received two verbal reprimands, two written reprimands, and a 20 See note 12, supra. five-day suspension without pay. Additionally, in Case No. 19-3380, the undersigned has recommended that Respondent be suspended for ten days without pay for engaging in conduct charged in that case. Respondent also has been subjected to numerous non-disciplinary corrective actions during his employment with Petitioner. Collectively, counting the ten-day suspension that has been recommended in Case No. 19-3380, Respondent has received approximately 15 corrective actions, six of which were disciplinary in nature, between July 2011 and March 2019. Notwithstanding these numerous corrective actions, Respondent has persisted, during the timeframe covered by the May Administrative Complaint, in engaging in much of the same conduct for which he previously has been disciplined and issued non- disciplinary corrective actions. The evidence shows that these corrective actions have had essentially no deterrent effect on Respondent's conduct. The competent, credible evidence establishes that Petitioner has given Respondent numerous chances, through its corrective action policy, including the progressive discipline process, to change his conduct which violated, and continues to violate, DOE rules and School Board policies. The competent, credible evidence establishes that nonetheless, Respondent has continued, during the timeframe covered by the May Administrative Complaint, to engage in much of the same conduct which violates DOE rules and School Board policies, and for which he previously has received numerous disciplinary and non-disciplinary corrective actions. Petitioner has closely adhered to the progressive discipline provisions in Policy 4.9, meting out multiple verbal and written reprimands, interspersed with non-disciplinary corrective actions to Respondent, before resorting to suspending him from employment—first, for five days, then for ten days—for his persistent conduct which violated DOE rules and School Board policies. The purpose of Policy 4.9 is "to improve and/or change employees' job performance [and] conduct."21 Despite giving Respondent numerous opportunities, through disciplinary and non-disciplinary corrective actions, to change his conduct, Respondent has not done so. Given that Petitioner has closely followed the progressive discipline provisions of Policy 4.9, and the fact that Respondent has received numerous corrective actions over his period of employment with Petitioner—which have not resulted in him changing his conduct such that he does not engage in behavior which violates DOE rules and School Board policies—it is determined that, pursuant to Policy 4.9, Respondent should be terminated from his employment as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a Final Order in Case No. 19-3380 suspending Respondent for ten days without pay, and enter a Final Order in Case No. 19-3381 terminating Respondent's employment as a teacher. DONE AND ENTERED this 5th of May, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2021. COPIES FURNISHED: Denise Marie Heekin, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Elizabeth W. Neiberger, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605 Ranjiv Sondhi, Esquire Bryant Miller Olive, P.A. One Southeast Third Avenue, Suite 2200 Miami, Florida 33131 Robert W. Runcie Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues are whether Petitioner has demonstrated that Respondent should be suspended and terminated from employment with the Miami-Dade County Public Schools, pursuant to section 1012.34, Florida Statutes, for failure to correct performance deficiencies; and whether Petitioner should be terminated for just cause, pursuant to section 1012.33, Florida Statutes, for incompetency due to inefficiency.
Findings Of Fact The Parties and Background Petitioner is 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, pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes. Respondent has been employed with the Miami-Dade County Public School District (?District?) as a teacher of Emotional/Behavioral Disabled (?EBD?) students since 2001. He initially was a part-time teacher, substituting for a teacher on maternity leave. He became a full-time teacher with the District in the 2002-2003 timeframe. At the time of the events that gave rise to this proceeding, Respondent was employed as a full-time teacher at Pine Villa Elementary School (?Pine Villa?), pursuant to a professional services contract. At all times material, Respondent’s employment was governed by the collective bargaining between Miami-Dade Public Schools and the United Teachers of Dade (?UTD?), Petitioner’s rules, and Florida law. The 2009-2010 School Year In the 2009-2010 school year, Respondent taught second grade and third grade EBD students. EBD students are disabled due to persistent emotional or behavioral responses that may interfere with their learning ability. It is common for EBD students to academically perform below grade level; accordingly, they need to be in a smaller class with a more structured learning environment. Renny Neyra became the Pine Villa Principal at the beginning of the 2009-2010 school year, and held the position through the 2010-2011 school year. According to Ms. Neyra, Respondent had difficulty teaching his class, and the test data for his students showed no improvement in their performance. Ms. Neyra requested and received assistance for Respondent from the District, consisting of expert personnel on special assignment to assist in areas in which Respondent’s performance was perceived to be lacking. Ms. Neyra did not place Respondent on 90-day performance probation pursuant to section 1012.34 during the 2009-2010 school year because she felt it would be unfair to do so. She testified that she wanted to afford Respondent the opportunity to obtain professional performance assistance so that he could improve his teaching skills, which, in turn, would help his students. The 2010-2011 School Year Because of Respondent’s perceived difficulties in planning for and teaching students of different grade levels during the 2009-2010 school year, Ms. Neyra decided to assign Respondent only third grade EBD students for the 2010-2011 school year. In the 2010-2011 school year, Respondent’s class consisted of 11 students. This is slightly smaller than the typical third grade EBD class in the District, which generally consists of 16 to 17 students. For the 2010-2011 school year, an interventionist, curriculum specialist, and full-time paraprofessional were assigned to assist Respondent in his classroom.2/ Ms. Neyra testified that it was unlikely an interventionist or curriculum specialist would have been assigned to Respondent’s classroom, had he been performing well. IPEGS Evaluations of Respondent Teachers employed by the District are evaluated pursuant to the Instructional Performance Evaluation and Growth System (?IPEGS?). IPEGS entails assessor observation of, and provision of written comments on, teacher classroom performance. Five separate IPEGS evaluations of Respondent were conducted in the 2010-2011 school year, on September 23, 2010; October 25, 2010; December 7, 2010; January 26, 2011; and February 28, 2011. In the September 23, 2010, evaluation, Ms. Neyra observed that Respondent had incomplete lesson plans; failed to provide clear, specific, and sequential directions and guidance; did not use teaching strategies that engaged the students; and did not clarify the lesson for the students. The specific IPEGS Performance Standards (?Standards?) in which Ms. Neyra determined Respondent deficient were Standards 2 - Knowledge of Learners; 3 – Instructional Planning; and 4 – Instructional Delivery and Engagement. Respondent was informed of the observed deficiencies and placed on Support Dialogue for a 21-day period. Support Dialogue entails the provision of mutually-determined support strategies designed to remedy the deficiencies identified in the evaluation. Ms. Neyra conducted a second evaluation of Respondent’s teaching on October 25, 2010, and observed the same deficiencies. She also observed deficiencies in Respondent’s performance with respect to Standard 8 – Learning Environment. Following this evaluation, a Conference-for-the-Record (?CFR?) was held to inform Respondent that he was being placed on 90-day performance probation pursuant to section 1012.34(3), and to obtain Respondent’s and UTD’s input regarding measures to address Respondent’s performance deficiencies. As a result of the CFR, Respondent was provided an Improvement Plan containing specific direction regarding correction of his performance deficiencies. Assistant Principal Dorothy Pinkston evaluated Respondent’s classroom teaching performance on December 7, 2010, after which another Improvement Plan was provided to Respondent.3/ Ms. Neyra conducted another evaluation of Respondent’s classroom teaching performance on January 26, 2011, and found Respondent deficient in Standards 2, 3, 4, and 8. According to Ms. Neyra, Respondent did not attend to students’ needs and did not provide teacher-directed instruction. As a result of the January 26, 2011, evaluation, Respondent was provided another Improvement Plan. Ms. Neyra conducted a fifth evaluation, termed a ?confirmatory observation,? of Respondent’s classroom teaching performance on February 28, 2011. She again determined that he had not corrected the previously identified performance deficiencies. Respondent’s Students’ Performance on Objective Assessments Ms. Neyra testified that in addition to the IPEGS evaluations, Respondent’s students’ performance on interim assessments in math and reading and the Florida Assessments for Instruction in Reading (?FAIR?), administered by the District, played a role in her decision to terminate Respondent’s employment. Student performance assessments, termed ?benchmark assessments,? for math and reading are administered by the District at the beginning of the school year. ?Interim assessments? for math and reading are administered in the fall and winter of the school year. These assessments are used to measure student performance prior to taking the Florida Comprehensive Assessment Test (?FCAT?) later in the school year. Where performance deficiencies are identified, students can be provided remedial instruction to better prepare them to take the FCAT. Petitioner presented documentary evidence regarding Respondent’s students’ performance on the interim assessments for math and reading in the 2010-2011 school year. This evidence compared Respondent’s students’ performance to that of all third grade students in the District, and to that of third grade ?disabled students? throughout the District. Petitioner did not present any evidence comparing Respondent’s students’ interim assessments scores to those of other EBD third grade students in the District. Petitioner’s documentary evidence was not supported by testimony of any witnesses qualified and competent to analyze the scores or to explain what the scores demonstrate or mean,4/ or by any other competent evidence. Without such testimony or other competent evidence, meaningful determinations Respondent’s students’ scores and their use in evaluating Respondent’s performance pursuant to section 1012.34(3) cannot be made. Moreover, Petitioner’s documentary evidence did not provide information that could be used to accurately compare Respondent’s students’ scores to those of other similarly situated students. The uncontroverted evidence established that EBD students generally perform below grade level in their school work and on objective assessment measures; accordingly, Respondent’s students’ interim assessment scores cannot be meaningfully compared to those of all other third grade students in the District. Although Petitioner’s evidence did compare Respondent’s students’ scores to those of third grade disabled students, the ?disabled students? category includes students with all types of disabilities, not only emotional and behavioral disabilities. Petitioner provided no evidence to support its contention that EBD students perform comparably to all other disabled students on the interim assessments. Absent evidence specifically comparing Respondent’s students’ interim assessment scores with those for comparable students——i.e., other third grade EBD students in the District——it cannot be determined whether Respondent’s students’ performance is attributable to teaching deficiencies on his part, or to their emotional and behavioral disabilities. Petitioner also provided documentary evidence, supported by the testimony of reading coach Eida Herrera, regarding Respondent’s students’ performance on the FAIR assessments. However, again, no evidence was presented specifically comparing Respondent’s students’ performance on the FAIR assessments to other third grade EBD students’ scores, so there is no context in which to meaningfully evaluate Respondent’s students’ FAIR assessment results for purposes of assessing his teaching performance pursuant to section 1012.34. Respondent’s students’ scores for the FCAT were not reported until after Respondent was suspended and action was taken to terminate his employment. Accordingly, the FCAT scores did not, and could not, play a role in Ms. Neyra’s decision to terminate Respondent.5/ Ms. Neyra testified that once Respondent’s students’ FCAT scores were received, she compared them to the District- wide scores for EBD third grade students, and that Respondent’s students did not perform well when compared with other EBD third grade students in the District. She testified that this information confirmed the correctness of her decision to terminate Respondent’s employment. However, as with the interim assessment scores, absent competent testimony by qualified persons or other competent evidence regarding FCAT scores and their analysis and use, accurate determinations regarding Respondent’s students’ FCAT scores and their meaning and use in assessing his classroom teaching performance pursuant to section 1012.34 cannot be made. In any event, Ms. Neyra testified that the primary reason she decided to terminate Respondent was that he did not remediate the performance deficiencies she had observed in the IPEGS evaluations. Ms. Neyra testified regarding the need for three other professionals to assist Respondent in his classroom, and the expense involved in providing this support. However, Petitioner did not present any expert testimony addressing incompetency relative to Respondent’s specific circumstances. Respondent testified on his own behalf. He has a master’s degree in exceptional student education, varying exceptionalities, and ten years’ experience as a teacher of EBD students. Respondent credibly testified that he has had positive evaluations throughout his teaching career and has not previously had problems with any other principals with whom he has worked. Respondent’s testimony established that he is intimately familiar with each of his students’ specific academic and personal issues. He credibly testified, in substantial detail, regarding the instructional and behavioral management measures in which he engaged, on an individual student basis, to address each student’s specific academic and personal issues,6/ and to try to help each student learn. Respondent also credibly testified regarding the challenges involved in teaching his students——many of whom had significant behavioral and emotional issues and came from severely socially and economically disadvantaged backgrounds—— while at the same time keeping order in his classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order rescinding the action taken to suspend and terminate Respondent from his employment and paying Respondent’s back salary and any other benefits owed. DONE AND ENTERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 30th day of December, 2011.
The Issue The issue in the case is whether there is just cause to terminate the employment of the Respondent.
Findings Of Fact At all times material to this case, the Respondent was a certified teacher, employed by the Petitioner under a professional services contract and working at the Lehigh Acres Middle School. On or about February 6, 2002, the Respondent received two written reprimands from Gerald B. Demming, the school principal, related to the Respondent's behavior towards students. The first written reprimand related to incidents occurring on January 17 and 22, 2002, during which the Respondent verbally disparaged students, calling them "sorry" and "no good" and advising them that they would be unsuccessful "in life." The second written reprimand related to an incident on February 5, 2002, during which the Respondent apparently mocked a student in the classroom. In meeting with the Respondent, Principal Demming clearly expressed his concern regarding the Respondent's behavior towards students, and advised that such actions were unacceptable and were viewed as violations of the Principles of Professional Conduct. The Respondent signed and received copies of the written reprimands. The written reprimands were not the first time such concerns had been addressed with the Respondent. During the 2000-2001 school year, Mary Ann Moats, then employed as the Lehigh Acres Middle School principal, had verbally expressed concerns of a similar nature, specifically the use of derogatory language directed towards students (such as "stupid," "no good," and "ignorant"). Students became so unhappy with the Respondent's behavior that, on one day, an entire classroom of students walked out of the Respondent's class and walked to Principal Moats' office to express their dismay with his treatment of them. She attempted to resolve the dispute and urged the Respondent to modify his behavior. During Ms. Moats' employment as principal, the Respondent's behavior toward students continued to be of concern. Complaints were received from students, parents, and from other faculty members. She met more than once with the Respondent to discuss matters raised by the complaints. A written memo dated December 5, 2000, specifically related to allegations of verbal abuse directed towards students was provided to and signed by the Respondent. Further, such concerns were identified in paragraphs 5-7 of the Respondent's 2000-2001 performance evaluation dated April 9, 2001, where he received "Below Expectations/Unsatisfactory" marks in several areas including: Human Development and Learning: Uses an understanding of learning and human development to provide a positive learning environment which increases student achievement and supports the intellectual, personal and social development of all students. Learning Environment for Student Achievement: Creates and maintains a positive learning environment which fosters active engagement in learning, social interaction, cooperative learning and self motivation and manages student behavior; and Communication for Student Achievement and Parental Satisfaction: Uses effective communication techniques with students, parents (i.e., one-to-one telephone calls, conferences, newsletters, etc.), and all other stakeholders. Despite the clearly expressed concerns related to the Respondent's behavior towards students, the behaviors generally continued during the 2001-2002 school year, and culminated on February 13, 2002, in two specific events that resulted in the Petitioner's decision to terminate the Respondent's employment. During the 2001-2002 school year, the Respondent was assigned to teach a seventh grade class during the first period. K.R. was a student in the Respondent's first period class, and generally was an "A" or "B" student. On February 13, 2002, K.R. returned to the Respondent's first period class after more than a week of absence related to a family vacation. Prior to going on vacation, K.R. had obtained one week of advance class assignments in order to maintain her school work while on vacation, but the vacation apparently extended beyond what was originally planned. During the time for which K.R. had not obtained class assignments, the Respondent directed the students to prepare speeches related to Black History Month. The speech assignment was written on the chalkboard, as was the Respondent's usual practice, but had not been assigned at the time K.R. left for vacation. After class started, K.R. began to repeatedly question the Respondent about the assignment and went so far as to interrupt other students as they presented their speeches. The Respondent told K.R. to "shut up," called her "ignorant," and directed K.R. to go to a table at the rear of the classroom, remarking to the other students in the class that they did not want to be like K.R. Thereafter K.R. sat in the back of the classroom and cried. When class ended, the Respondent required K.R. to remain in his classroom while he called her mother and reported the behavior to her. K.R. spoke briefly to her mother during the call, but otherwise remained in the classroom, during which time other students began to enter for the second period class. When K.R. arrived at her second period class, she was still upset and her teacher sent her to the office to speak to a school official, at which time, concern related to the Respondent's behavior was apparently heightened. During the 2001-2002 school year, the Respondent also taught a seventh grade class during the sixth period. M.C. and J.A. were students in the Respondent's sixth period class. At the beginning of the period, M.C. was standing near the Respondent's computer located close to his desk. Attempting to quiet the class, he instructed the students to take their seats and settle. Standing behind M.C., he placed his hands on her shoulders and gently pushed her towards her chair, leaning down to tell her that when he told the class to sit down he intended for her to be seated as well. M.C. testified that when the Respondent told her to take her seat, the Respondent kissed the back of her neck. The Respondent denies kissing the student. The evidence related to the alleged kiss is not persuasive. The Respondent asserts that at the time of the alleged kiss, he was advising M.C. that she was part of the class and his instruction to the class to settle was applicable to her. M.C.'s testimony related to the Respondent's statement corroborates the Respondent's recollection and indicates that she understood that he was including her in his instruction to the class to settle. Of the students who were in the classroom at the time and who testified at the hearing, only one student testified that she saw the alleged kiss. Although she testified that she saw the kiss occur, her recollection of what the Respondent said to M.C. at the time of the alleged kiss is completely different from the statement claimed by the Respondent and corroborated by M.C.'s recollection. Other students in the classroom who testified did not recall seeing the Respondent kiss M.C. Although there is no evidence suggesting that such a kiss would have been typical of the Respondent's interaction with a student, no student recalled any type of noise or verbalization from the other students at the time of the alleged kiss. There was some evidence presented indicating that M.C.'s hairstyle on that day would have made it difficult to kiss her neck without having moved her hair, and suggesting that in leaning down to speak to M.C., the Respondent spoke closely enough to cause her hair to brush her neck. M.C.'s recollection of what hairstyle she wore on that day was uncertain. In any event, M.C. believed she was kissed and was unhappy about it. She eventually requested and received a bathroom pass from the Respondent, but after leaving the classroom, she went directly to the school administration office and reported the incident. After speaking to M.C., school personnel called the Respondent on the classroom telephone and asked him to send another student, J.A., to the office for early dismissal. After arriving at the office, J.A. was asked whether she had witnessed the incident. At that time, she was apparently advised not to discuss the matter with anyone else. While in the office, M.C. asked J.A. to return to the Respondent's classroom and to retrieve M.C.'s belongings. J.A. was permitted by assistant principal to return to the Respondent's classroom and to retrieve M.C.'s possessions. A teacher who had been in the office, Kevin Richter, escorted J.A. through the school on her way back to the Respondent's classroom. Mr. Richter then returned to his classroom. After arriving back at the Respondent's classroom, J.A. entered and began to collect M.C.'s belongings. The Respondent asked J.A. to tell him what she was doing. Believing she had been instructed not to discuss what she was doing, she did not respond to him, but finished collecting the items after which she walked out of the classroom and into the hallway. The Respondent followed J.A. into the hallway, and began yelling at her for being "disrespectful." J.A. began yelling back, telling the Respondent she was doing what she was asked to do. Apparently the confrontation between the Respondent and J.A. continued for a period of time and at sufficient volume as to attract the attention of a student affairs specialist in the office across the hallway as well as Mr. Richter, who by that time was two hallways removed from the scene. Mr. Richter, hearing the commotion and assuming that some students were preparing to fight, ran to the commotion and realized that the yelling was coming from the Respondent and a student. At that point, Mr. Richter went to the school office and summoned Principal Demming. After the yelling had subsided, the principal contacted the school district's personnel office and requested an investigation of the day's events. The investigation ensued and eventually resulted in the Petitioner's decision to terminate the Respondent's employment. The Respondent asserts that he was not sufficiently placed on notice of the behavioral issues to suggest that termination of employment is warranted. The evidence establishes that the Respondent received notice sufficient to comply with the School Board's NEAT process (Notice of deficiencies, Expectations, Assistance, and Time to improve). The Respondent asserts that the students were disrespectful and presented disciplinary problems. The Respondent had a classroom telephone and other means of communicating with school officials if a disciplinary situation became unmanageable. There is no credible evidence that any of the students addressed in this Recommended Order presented disciplinary problems that could not be managed through the normal policies and practices of the school, including referrals to school officials.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Lee County enter a Final Order terminating the employment of Roger J. Phillips. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. _____ WILLIAM F. QUATTLEBAUM 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 2nd day of August, 2002. COPIES FURNISHED: J. Paul Carland, II Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Robert J. Coleman, Esquire Coleman & Coleman, P.A. 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Dr. John W. Sanders, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Honorable Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether there is just cause for Palm Beach County School Board to suspend Deborah Stark for 10 days without pay based upon the allegations made in its Administrative Complaint filed on November 8, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the Palm Beach County Public School System. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Stark was hired by the School Board in 2005. She is employed pursuant to a professional services contract with Petitioner. At all relevant times to this case, Stark was a teacher at Diamond View. She taught second grade. One of Stark's teaching responsibilities was to provide student information to the School Based Team ("SBT") such as conference/staffing notes,1 to assist the SBT in determining how best to support students who were having challenges or difficulties with reading. During Stark's last several school years with the School Board, Stark engaged in a pattern of misconduct. On June 1, 2015, Stark received, by hand delivery, her first written reprimand. She was disciplined for falsifying three memos by inappropriately using the School Board's letterhead and creating misleading and false documents under co-workers' names without permission. One problem area Respondent had was that she failed to keep her classroom organized and neat. Because of the disorganized book area and unkempt cluttered classroom, Respondent's classroom failed to be an environment conducive to learning and impacted the students' morale negatively. On September 30, 2015, Principal Seal, by memorandum, addressed two of Stark's work deficiencies. Seal pointed out to Stark that her classroom management did not correspond with the School Wide Positive Behavior Support Plan and that Stark's 2014-2015 Reading Running Records ("RRR")2 were not accurately and properly administered. Seal instructed Stark to sign up for a classroom management course through eLearning within a week and notify Seal of the enrollment. Seal even specifically suggested a two- day course that started on October 6, 2015, at the Pew Center. Seal also outlined Stark's RRR inaccuracies and deficiencies in the September memo, which included Stark's failure to provide an accurate report on September 25th for a student during a scheduled SBT meeting, improper use of school materials as a benchmark, and writing in the teacher materials with student's information inappropriately. As a result of Stark's RRR shortcomings, Seal directed Stark to sign up for the next RRR training available on either October 13, 14, 23, or 24, 2015, through eLearning and instructed Stark to verify the RRR training enrollment. The memo ended with the following: "Failure to comply with these directives will be considered insubordination and may result [in] disciplinary action to include up to suspension or termination of employment." On November 10, 2015, Seal specifically directed Stark to clean up her classroom and update her students' progress on the class bulletin board. Stark was provided a deadline of on or before November 24, 2015, to correct the performance deficiencies. Stark did not do so. In December 2015, Stark still had student work posted from August and her classroom was not up to date. On December 18, 2015, a pre-disciplinary meeting was held. In that meeting, Stark informed Seal that she went to training, but admitted that she did not provide the required documentation of attendance. Stark's performance with RRR had not improved. By February 2016, Respondent had failed to comply with Seal's directives of November 10, 2015. Stark's classroom was unacceptable and had not been cleaned up, updated, organized as directed. The closet was cluttered from the floor to the ceiling with boxes, papers, and books. Additionally, Stark's student work bulletin board still was not changed and up to date. On February 12, 2016, Seal met with Stark to address the issues and gave Stark a verbal reprimand with written notation. The verbal reprimand with written notation memo stated that Respondent was insubordinate for fail[ing] to comply with "directives given to her in the memorandums dated September 30, 2015, and November 10, 2015." On May 24, 2016, a pre-determination meeting was held with Stark and she acknowledged that she had fallen behind in the RRR and math/reading assessments but planned to catch up by the end of the year. On June 2, 2016, Seal held another disciplinary conference with Stark. Seal provided Stark a written reprimand by memo detailing that Stark exhibited: poor judgement, lack of follow up, inappropriate supervision of students, excessive absence without pay, failure to properly and accurately administer and record Reading Running Records as well as Math and Reading assessments, during the school year 2015/2016 with fidelity and insubordination. Seal also instructed Stark in the memo: Effective immediately, you are directed to provide the appropriate level of supervision to your students, follow your academic schedule, meet deadlines with respect to inputting reading and math date into EDW, accurately complete Running Reading Records, cease from taking unpaid time and follow all School Board Policies and State Statutes. Finally, pursuant to the CTA contract, I am directing you to provide a doctor's note for any absences going forward. This requirement will be in effect until December 22, 2016. Respondent failed to follow the leave directive of the written reprimand of June 2, 2016. Stark's duty day started at 7:50 a.m. On October 14, 2016, Stark notified Diamond View at 8:26 a.m. that she would not report to work because she had a ride to an appointment. On November 29, 2016, Stark notified the school at 7:40 a.m. by stating, "I have a meeting boo," as she took the full day off. On December 16, 2016, she notified the school at 6:24 a.m. that her husband requested a shopping day and family activities for the day. On February 10, 2017, Stark notified the school at 7:38 a.m., "I am going to a friend's house today to help them." On March 2, 2017, she notified the school at 7:14 a.m. that "I am finalizing a college class today." On March 7, 2017, Stark notified the school at 6:18 a.m. that Nationals verses Boston were at the new park and she would not be in to work. On April 5, 2017, Stark notified the school at 7:34 a.m. that she had a meeting and missed half the school day. Stark's absences of September 21, September 23, October 14, November 29, and December 16, 2016, were unauthorized leave and her leave of March 2, March 7, April 5, and February 10, 2017, were days without pay. Stark's excessive absenteeism disrupted the learning environment for her students and caused Respondent to miss out on valuable School Board resources she needed to perform her job duties and correct her work performance deficiencies. By missing work, Stark was neither able to obtain the needed available professional development nor obtain support from the Literacy Staff Developer. Stark's ineptness continued throughout the 2016-2017 school year. Stark failed to provide requested student information needed to assist in creating report cards for several former students, which adversely impacted the school and the students because, among other things, the school was not able to provide the students' new teachers with accurate data for placement. Stark was offered coaching services to improve her work performance through Peer Assistance Review ("PAR"). Stark failed to show up and meet with the trainers assigned to provide her support on January 20, February 1, and March 7, 2017. Stark failed to submit the required SBT documentation for five students timely. Stark's duties included meeting with the parents of each student to communicate the students' academic concerns. Stark did not meet with the parents. Instead, Stark submitted five untimely falsified student records indicating parent meetings that did not take place. She also forged translator Torres-Vega signature like she was present at the meetings, when Torres-Vega had not participated. On or about April 24, 2017, an investigation report was completed detailing Stark's misconduct for the 2016-2017 school year. The investigative summary concluded Stark failed to comply with numerous directives given by the principal and vice principal. Stark failed to complete and submit SBT documentation for five students who could have benefited from additional supportive services. Respondent falsified student records indicating she contacted and conferenced with the parents for each student. She also falsified that a translator had participated in the parent conferences. At the same time, Stark sent last minute notification emails to the principal as to why she would not be reporting to work, failed to notify Seal in a timely manner when she would not be reporting to work, and did not prepare substitute lesson plans. Stark's unexcused absences totaled approximately 40 hours without pay within a five month period and did not adhere to the 24 hour advanced notice requirement of the Collective Bargaining Agreement. Respondent's absences from work also caused her to miss valuable School Board training and support. Ultimate Findings of Fact Stark failed to fulfill the responsibilities of a teacher by not preparing and submitting the documents to the SBT so that the students could qualify for the support and services after multiple follow-ups and reminders by her supervisors. Stark's actions of falsifying the five students' records with Torres-Vega's signature and indicating that she met with the parents when she did not was ethical misconduct, failure to exercise best professional judgment, failure to provide for accurate or timely record keeping, and falsifying records. Stark misused her time and attendance when she had exhausted her paid time, but continued to use leave without pay when her work was not up to date and after she had been reprimanded and warned regarding absences by Seal. Stark's explanation of her absences failed to fall in the category for extenuating circumstances and her absences disrupted the learning environment. Stark was insubordinate and also failed to follow procedures, policies, and directives of the Diamond View principal and vice principal. Stark never cleaned up her classroom and failed to protect the learning environment. She also did not update her RRRs as instructed by Seal. On February 1, 2017, Vice Principal Diaz had also instructed Stark to always follow and adhere to an academic schedule with the students in order to provide structured learning. Instead, Stark continued to constantly allow the students to walk around the classroom, draw and eat snacks, without an academic schedule. By letter dated September 19, 2017, Respondent was notified that the School Board was recommending she receive a 10 day suspension without pay because of her misconduct. On or about October 4, 2017, the School Board took action by voting to suspend Respondent for 10 days without pay. Petitioner ultimately filed charges against Stark by Administrative Complaint dated November 8, 2018, that alleged Stark violated the following School Board policies: Failure to Fulfil the Responsibilities of a Teacher pursuant to School Board Policy 1.013(4), Responsibilities of School District Personnel and Staff; School Board Policy 2.34, Records and Reports; Collective Bargaining Agreement with CTA, Article II, Section U, Lesson Plans Failure to Protect the Learning Environment pursuant to School Board Policy 0.01(2)(3), Commitment to the Student, Principle I-(formally 0.01(2)(c); 6A- 10.081(2)(a)(1), F.A.C., Principles of Professional Conduct for the Education Profession Misuse of Time/Attendance pursuant to School Board Policies 3.80(2)(c), Leave of Absence; Collective Bargaining Agreement with CTA, Article V, Leaves, Section B Ethical Misconduct pursuant to School Board Policy 3.02(4)(b), (4)(d), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 3.02(5)(c)(iii), Code of Ethics; 6A-10.081(1)(c) and (2)(c)(1), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Failure to Exercise Best Professional Judgment pursuant to School Board Policy 3.02(4)(a), Code of Ethics; 6A-10-081(1)(b), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Insubordination: Failure to Follow Policy, Rules, Directive, or Statute pursuant to School Board Policy 3.10(6), Conditions of Employment with the District; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: Finding Deborah Stark in violation of all six violations in the Administrative Complaint; and Upholding Deborah Stark's 10-day suspension without pay for just cause. DONE AND ENTERED this 25th day of July, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2018.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including Carol City Senior High School (Carol City). At all times material to the instant case, Mary Henry has been the principal of Carol City and James Meehan has been an assistant principal at the school. At all times material to the instant case, Respondent was a language arts teacher at Carol City holding an annual contract. Respondent began teaching at Carol City in September of 1997. She remained at the school until February of 2000. In accordance with the School Board's Teacher Assessment and Development System (TADS), which it developed in concert with the United Teachers of Dade, the collective bargaining representative of the School Board's teachers, school principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe required remedial activities designed to improve the teacher's performance. The categories of classroom performance that are assessed are "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," "teacher-student relationships," and "assessment techniques." Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. TADS was modified following the 1997 session of the Florida Legislature to provide for a 90-day "performance probation period" for annual contract and professional service contract teachers determined to be performing unsatisfactorily. The modification was set forth in a Memorandum of Understanding between the School Board and the United Teachers of Dade, which provided, in pertinent part, as follows: Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days conduct a conference-for-the-record which address: results of the observation/assessment, or Category VII infraction, stipulations of the Performance Probation (90 calendar days, excluding school holidays and vacations), which begins upon the employee's receipt of the written plan of assistance (prescription), the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time, future required observations/assessments, and possible employment actions. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation. The annual evaluation decision will be based upon the result of the last observation/assessment . . . . Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent.- Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board continue or terminate his or her employment contract. If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing. . . . On October 21, 1999, Respondent was formally observed in her classroom by James Meehan, an assistant principal at Carol City and a certified TADS observer. Mr. Meehan rated Respondent deficient in "preparation and planning" (Category I.B.2.); "knowledge of subject matter" (Category II.A.2.); "classroom management" (Categories III. B.2. and 4. and III.C.1. and 4.); and "techniques of instruction" (Categories IV.H.1. and 2.). These unsatisfactory ratings were justified. Following Mr. Meehan's October 21, 1999, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (First Report). The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson plan prepared by the instructor was not followed. The stated objective in the lesson plan was: "Student will demonstrate test taking skills and ability to visualize descriptive language; FCAT worksheet (reading comprehension)." The activities used to accomplish these objectives were stated as follows: "Test on literature; pictures of a descriptive passage with language being discussed included; reading comprehension worksheets." The actual lesson consisted of: (1) quiz on run-on sentences; (2) the introduction of the elements of a short story by the instructor; (3) the reading of an essay which the instructor mistakenly identified as a short story; and (4) students' written responses to "Questions for Study and Discussion," after the reading of the essay. There was no demonstration by students of their ability to visualize descriptive language, no FCAT reading comprehension worksheet, and no literature test." PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairman, on each Friday, for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.A.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor attempted to teach the elements of a short story by applying them to a work by Maya Angelou which is described in the handout given to students, as a "self-contained section from her first autobiography," and later on as an "essay" in the "Questions for Study and Discussion." The instructor continuously referred to this literary work as a short story; however, it is a work of non-fiction. The instructor erroneously applied the elements of a short story such as exposition complication, conflict, climax, and denouement to this non- fiction literature. This work was an example of a descriptive essay, not a short story. PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairperson, on each Friday, for review and discussion, prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.A.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not utilize non-verbal techniques to redirect off-task learners. Off-task behavior was frequent and persistent throughout the class period. Of the 30 students present, 20 were off-task for significant period[s] of time. Students in A1, B1, C2, C4, D1, D2, G1, and G4 slept some 20 minutes or more. The students in F1 and F2 continuously passed notes to one another while the student in E4 read a sports catalog for at least 30 minutes. At one point, the students in A4 and G3 walked to the front of the room in back of the instructor, exchanged notes, and returned to their seats. The student in B5 combed the hair of the student in B4 and afterwards massaged his hands. The student in A1, when not sleeping, played with her hair. Other students stared into space or otherwise wasted time. The instructor never attempted to use non-verbal techniques such as eye contact, silence, clapping, or proximity to redirect these off-task behaviors. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, designated by the assessor, to record how he/she has successfully used non-verbal techniques to deal with off-task student behavior. The instructor will type a summary of the interview and develop a plan, incorporating some of the suggestions, to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Julia Fehr, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Often times during the period, 50 to 70 percent of the students were off-task. Students were engaged in activities not associated with the lesson. They daydreamed, drew pictures, wrote notes, slept, or were distracted in other ways. The instructor made an attempt to verbally redirect some students who were off-task; however, they were not revisited and the off-task behavior continued when the instructor directed her attention elsewhere. The student in E4 was told to put his catalog away. He then put his head down on his desk instead. He was not revisited. The students in A1 and F1 were told to do their work and move their desks closer to the front of the room. When they did so, they continued their off-task behavior, F1 by throwing papers across the room into the garbage pail and gyrating to imaginary music, A1 by continuously getting up from her desk and fiddling with her hair. Neither student was revisited. Verbal and non- verbal techniques to maintain the attention of redirected learners were not employed by this instructor. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, to record how he/she has successfully use[d] verbal and non- verbal techniques to maintain the attention of redirected learners. The instructor will type a summary of this interview and develop a plan, incorporating some of the suggestions presented, to reduce the frequency of recurring off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably resigned to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior had not been established or were not clear to learners. Of the 30 students present, 14 arrived late. None of these students was asked for an explanation. The only reaction from the instructor was, "Do you see how aggravating this is?" When students had to sharpen pencils, they left their seats and walked across the room. Four students were observed leaving their seats to sharpen pencils while the instructor was lecturing or reading to the class. When disposing of garbage, several students threw their papers across the room. The student in F1 and another student in row G played basketball with balled up paper and the trash can. When responding to questions, students would blurt out answers. There was no systematic method established for asking or answering questions. At the end of the period, before the bell, 11 students left their seats and began walking around the room. One student left his seat and walked across desks to get to the side of the room. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, for suggestions on how to deal with inappropriate student behavior during class. She will type a summary of each interview. The material will be submitted to Mr. Meehan for review and discussion. Mr. Meehan and Pamela Salkey, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly or appropriately by this instructor. During the quiz, students in A3, A4, and F1 continuously looked at other students' papers, while students in A5 and B4 conversed. These behaviors continued without the instructor identifying or responding to the students involved. At another point during the lesson, the student in B5 yelled, "I don't give a fuck," loud enough to be heard across the room. There was no response from the instructor. The magnitude and frequency of talking that occurred during the lesson made it extremely difficult for students to hear what the teacher was saying and for students to complete their assignments. During the last 35 minutes of the class when students were assigned to respond to 4 questions dealing with the reading selection, only 8 of 30 students completed the assignment, 12 handed in no paper at all, while 7 did 1 or 2 of the questions. PRESCRIPTION PLAN ACTIVITIES The instructor will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a reward system to promote and maintain appropriate student behavior in class. The instructor will submit the plan to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan, Ms. Howard, and Ms. Theodora Woltch, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Areas of confusion were not identified before learners asked questions. During the quiz on run-on sentences, students were confused as to what to do. Many students were puzzled as to why they could not use coordinating conjunctions or another method of connecting run-on sentences, rather than being restricted to writing two separate sentences as instructed by the teacher. Confusion was exacerbated by an explanation on the reverse side of the test which stated, "In fact, it is often better to join them than to put them into separate sentences." When students asked if they could use another method, the instructor said they could not, but would not be incorrect if they did. Students remained puzzled as to what was acceptable. These potential areas of confusion with the run-on sentence should have been anticipated by the instructor, but were not. PRESCRIPTION PLAN ACTIVITIES The instructor will construct detailed lesson plans each week and discuss potential areas of confusion with her department chairperson on the Friday prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help Respondent improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION When students were assigned to write the answers to "Questions for Study and Discussion," several students asked if they could work in groups. The instructor responded that they could work in pairs. She then changed her mind and said they had to work individually. Afterwards, she again said they could work in pairs. Students were puzzled as to what to do. Students were further confused by what question they were assigned. Initially, the instructor assigned question 1, then 2 through 5, and later on told a student, "Do number 2 and I'll be happy." Again, many students were confused. When the instructor assigned students to grade each other's quiz papers, students did not understand what was correct, what was minus 5, and what was minus 10. The student in F3 stated that he was confused and the student in E3 claimed, "I don't understand." The instructor made no attempt to clarify these misunderstandings. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor chosen by the assessor, regarding how he/she approaches the organization [of] his/her lessons on a daily, weekly, and long term basis. The instructor will type a summary of this interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.2. On October 28, 1999, Ms. Henry held a conference- for-the-record with Respondent to discuss the contents of the First Report, a copy of which was provided to Respondent. Also present were Mr. Meehan and United Teachers of Dade representatives. An explanation of the deficiencies found by Mr. Meehan was given. In addition, Respondent was advised of the commencement (that day, October 28, 1999) of the 90-day "performance probation period" and warned that "failure to demonstrate remediation of [her] deficiencies may result in termination of [her] employment contract" and that failure to complete "prescription plan activities" by the November 22, 1999, deadline would "result in an unacceptable rating on the Professional Responsibilities Component of TADS." On November 17, 1999, Ms. Henry held another conference-for-the-record with Respondent. Also present were United Teachers of Dade representatives. The purpose of the conference was to discuss Ms. Henry's findings concerning an incident that had occurred in Respondent's classroom during her fifth period class on October 5, 1999. Ms. Henry had determined, based upon statements from students, that Respondent, during this fifth period class, had "inappropriately disciplined a student by grabbing her by the arm to remove her from the classroom." 1/ At the conference, Ms. Henry advised Respondent of the determination she had made and admonished Respondent accordingly. Among other things, she told Respondent that she should seek the assistance of an administrator or security monitor if she had a disruptive student in her classroom. The following day, November 18, 1999, Respondent received a letter of reprimand from Ms. Henry, which read as follows: On October 5, 1999, you inappropriately disciplined a student while instructing your language arts class. You violated Rule 6Gx12-5D-1.07- Corporal Punishment and 6Gx13-5D-1.08- Maintenance of Appropriate Student Behavior. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline are outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.07 and the Faculty Handbook- Item 9 - Classroom Management, Item 16- Corporal Punishment Policy, and Item 85- Supervision of Students. You are immediately directed to refrain from using any physical means to manage student behavior. Your are also immediately directed to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the above documents. The infraction, Case Number E-02750, was substantiated by students' statements. You are hereby officially reprimanded for violating your professional contractual responsibilities in that you grabbed the student's arm to remove her from class. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are hereby directed to implement approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. The reprimand was signed and dated (November 18, 1999) by Respondent. Respondent failed to complete the "prescription plan activities" set forth in the First Report by the November 22, 1999, deadline. On December 8, 1999, Respondent was formally observed in her classroom by Ms. Henry, who, like Mr. Meehan, is a certified TADS observer. Ms. Henry rated Respondent deficient in "knowledge of subject matter" (Categories II.B.2. and 3.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1.,3., and 4.); "techniques of instruction" (Categories IV.A.2. and 3. and F.1. and 3.); and "assessment techniques" (Categories VI.A.2., 3., and 4. and B.2. and 3.). These unsatisfactory ratings were justified. Following Ms. Henry's December 8, 1999, observation, she completed a "record of observed deficiencies/prescription for performance improvement" (Second Report), a copy of which was provided to Respondent. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.2., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The sequence of information presented was not logical. The teacher's lesson for the entire two hour block involved a test on vocabulary words, a bell shaped curve drawn on the chalkboard with the words "exposition," "climax" and "resatution (resolution)" around it, and an FCAT assignment for students to answer questions from pages 48, 49, and 50. Before one activity was completed, the teacher moved on to the next and then back again. This vacillation between activities was continuous throughout the lesson. At no point did the teacher attempt to establish a connection between elements of the lesson. There was no meaningful framework established by the teacher in which students could relate one component of the lesson with another. PRESCRIPTION PLAN ACTIVITIES The teacher will observe Ms Hayes' class during period 4 and summarize the instructional activities, techniques and strategies used by the teacher. The teacher must submit her observation in typed form to Ms. Henry, the principal. Elois Hayes, a language arts instructor at Carol City, and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to help to improve her performance in Category II.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.3, and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher failed to select or incorporate important dimensions and applications of the subject to make the lesson meaningful to learners. Without preparation or warning the teacher began to call loudly four words to students to write down. After much student confusion about the vocabulary words, the teacher then drew a bell shaped curve on the board and asked students to read a story and write down the exposition, climax, and resolution. Shortly after assigning this activity, the teacher wrote another assignment on the board and instructed students to answer questions from the assigned pages. The classroom activities required only copying answers and writing responses to questions on paper. At no time did the teacher provide examples or explanations nor did she attempt to engage the students in any meaningful or relevant activities. The lesson presented by the teacher demonstrates limited knowledge by the teacher in selecting activities that required higher order thinking skills such as reasoning, synthesis, comparison, or evaluation. PRESCRIPTION PLAN ACTIVITIES The teacher must plan and present lessons on different cognitive levels beginning with information that is knowledge based and extends to the highest level which is evaluation. All lessons should be introduced, presented on two or more cognitive levels and summarized by the teacher. The teacher must prepare appropriate lesson plans which must be submitted and discussed with Ms. Henry, the principal. Ms. Henry was listed in the Second Report as a "recommended resource" Respondent could draw upon to improve her performance in Category II.B.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.4., and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Subject matter was not presented at more than one cognitive level. The entire lesson was presented on the knowledge level. The instructional activities were limited to copying from the chalkboard. To entice students to copy or write assignment, the teacher instructed the class that each student would get three A's for the assignments. There were no other techniques used to encourage higher order thinking skills. PRESCRIPTION PLAN ACTIVITIES The teacher must meet with her department chairperson and media specialist to review lesson plan objectives, activities and supplemental materials that incorporate higher levels of reasoning in her lesson plans. The teacher must submit and discuss her lesson plans with Ms. Henry on a weekly basis. Ms. Henry, Ms. Howard, and Elaine VanNostrand, a media specialist at Carol City, were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.2., and directed Respondent to engage in and complete by January 6, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were constant unnecessary delays and disorderly behavior by both the teacher and students. The teacher began class by calling out vocabulary words during which time she stopped several times to threaten students about their behavior and about not taking the vocabulary test. She repeatedly told students, "Go to the office and get your class changed, if you don't want to be in here." Students talked loudly, moved freely around the classroom and yelled out answers to the vocabulary test. Approximately 9 to 12 students refused to do anything. Confusion resulted from the lack of clear directives being provided by the teacher. Time was wasted when the teacher argued with students, repeatedly yelled out the same vocabulary words to students, and passed out literature books to individual students who asked in confusion, "What words? What page? What are we doing? What story are we supposed to read? I don't know what you are talking about." So much time was wasted that the entire class became chaotic and neither teaching nor learning occurred. Approximately 65 to 75 minutes of instructional time was lost to unnecessary delays. PRESCRIPTION PLAN ACTIVITIES The instructor will invite her department chairperson to observe her class. During that time the visitor is to record the time the instructor spends on various activities while in class. Using the data, the instructor will then analyze her instruction on the basis of how much time she spends on instructional versus noninstructional activities. Once that information is known, the instructor will develop strategies to reduce her percentage of noninstructional time while in class. The instructor will type a summary of the results of this exercise. She will submit the material to Ms. Henry for review and discussion. Ms. Howard and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the allocated time period. The lesson attempted by the teacher ended at 1:40 p.m. while the students continued to do whatever they chose to do until 2:30 p.m., which was the time the class was scheduled to end. There was drumming and dancing, students playing church, students walking and socializing individually and in groups, hair combing, 4 to 5 students sleeping at various times and students who just took a break from misbehaving. Their teacher made no attempt to regain control of the classroom or to continue with the instructional activities. Instruction stopped 40 minutes before the scheduled end of the class. PRESCRIPTION PLAN ACTIVITIES The teacher must develop a seating chart for each class and use the seating chart to help maintain classroom management. The teacher must also make parental contacts and keep a log of all contacts made or attempted. The seating chart and parent contact log must be submitted to Ms. Henry for review and discussion. "Seating Chart," "Parental Contact Log," Student Service Staff," and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by January 8, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use non-verbal techniques to redirect off-task learners. Twenty-three students were present during the lesson. Of that number, 19 students in the classroom exhibited constant off-task behavior that lasted throughout the class period. Students were constantly observed walking around the classroom, drumming on desks, combing their hair, playing with the television, yelling, singing and dancing. The entire class was in a state of frenzy. The teacher did not use non-verbal techniques such as proximity, clapping or facial expressions, to redirect students to the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record the number of times she identifies and responds to off-task behavior. The teacher will also analyze her instruction and lesson plans to devise a strategy to significantly reduce the frequency of off-task behavior observed in her classroom. The teacher will submit her seating charts and strategy to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by January 4, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Constant and persistent off-task behavior was noted in this teacher's classroom. Students were observed talking, walking around the room, sleeping, singing, drumming on desks, dancing and playing with the television. Although the teacher yelled our commands and threats for behavior to cease, the behavior reappeared quickly once the teacher's attention was redirected to someone or something else. At 1:40 p.m. the teacher seemed defeated. She sat at her desk and attempted to address the assignments with students who were standing around her desk amidst total confusion. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will submit the seating charts with the recorded instances of misbehavior to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by January 13, 2000, the following "prescription plan activities" reasonably designed help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior were not established or clear to the students. Throughout the class period, 80% of the class were talking, walking around the room, yelling at other students or the teacher, singing, drumming on desks, dancing, combing hair, or turning on the television. The noise level was so high that the teacher had to yell to make a point. At one time the teacher walked over to the observer and said, "I guess you are happy. This is what happens when you bribe students in order to fire me." The teacher also advised students by stating, "Find a spot on the wall and talk to it and don't ask me anything." Other than yelling out commands to sit down, be quiet or threats to get out of the class, recurrent inappropriate behaviors were allowed to occur without consequences. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. The assertive discipline plan will be submitted to Ms. Henry for review and discussion prior to implementation. Ms. Henry and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.3., and directed Respondent to engage in and complete by January 10, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly by this teacher. Students were observed in various acts of off- task behaviors. The behaviors would sometimes persist until students became tired of that misbehavior and moved to another inappropriate behavior. The teacher appeared angry and overwhelmed with students' misbehavior. Off-task behavior was not dealt with quickly. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave and the resulting consequences imposed by the teacher. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The charts and the resulting analysis will be submitted to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by January 7, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this teacher. Students were observed throughout the class period engaging in inappropriate behaviors. In certain instances, the teacher responded in anger yelling out a command to sit down or stop talking. As soon as the teacher's attention was diverted to another off-task behavior or question, the behavior challenged earlier would return. No consequences were ever imposed by the teacher when she addressed any particular behavior. PRESCRIPTION PLAN ACTIVITIES Using outside resources, the teacher will identify and describe, at least two additional behavior management techniques which have been shown to be effective in the classroom. Using the information obtained, the teacher will devise a written plan to significantly reduce the frequency of inappropriate behavior in [her] classes. The teacher will submit this information to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.2., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructional methods employed by this teacher were not appropriate for the needs and abilities of the learners in the classroom. The teacher began the class by saying, "You are going to have a vocabulary test." Students were confused as to what vocabulary test they were to take, while some students stated that, "You never assigned us any words to study." After much confusion, the teacher yelled out four vocabulary words for students to write down. While students were copying vocabulary words from each other, the teacher hurriedly drew a bell curve on the chalkboard, wrote three words around the bell curve and asked students to find a sentence in the story that related to each of these words. Again, students informed the teacher that the class had not read the story. The teacher continued with this assignment by asking students to get a literature book. The teacher then began to vacillate between the vocabulary words and the bell curve relating to the story. Later, in the class period, the teacher wrote another assignment on the chalkboard which required students to answer question from the FCAT booklet. Students became frustrated, inattentive and disengaged with the lesson. PRESCRIPTION PLAN ACTIVITIES The lesson plans will reflect at least (3) different methods of delivering each lesson. The teacher will review the plans and methods with Mrs. Howard and Ms. Henry prior to their delivery. Ms. Henry and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The only materials used by the teacher were the chalkboard, textbook and FCAT workbooks. Supplemental materials such as handouts, computer assisted instruction, textbook glossary of words or dictionary and/or sticky notes were not employed to bring variety to the lesson and stimulate students' interest. The off-task behaviors manifested by students were the consequences of the teacher's failure to use a variety of materials. The instructor's limited use of basic curriculum materials was not appropriate for the needs and abilities of the learners in this class. PRESCRIPTION PLAN ACTIVITIES The instructor will meet with her department chairperson and the director of the Media Center in order to obtain assistance in finding supplementary materials that may assist her in her endeavors to instruct her English classes. The instructor will list the materials available and develop a plan to utilize some of these materials in her classes. The instructor will submit a copy of the list and the plan to Ms. Henry. The instructor will discuss the plan with Ms. Henry prior to implementation. Brenda Harrell, a media specialist at Carol City, Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.1., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not establish the necessary background for the lesson. She began the lesson by calling out vocabulary words. A majority of the students informed the teacher that they had not been assigned any vocabulary words for study. The next assignment required students to use a short story to respond in writing to the three words (exposition, climax and resolution) written around the bell shaped curve on the chalkboard. The teacher insisted the students had read the story. Students likewise indicated that they had not read the story because of an incident relating to the teacher's stolen purse on the day they should have read the story. Next, the teacher placed another assignment on the chalkboard from the FCAT booklet. It was apparent from the students' responses that there was no background or prerequisites for the lesson nor did the teacher facilitate students' understanding of the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher must prepare lesson plans that require more than student centered activities involving reading, writing, and copying answers from a textbook. The teacher must prepare lesson plans that are teacher/student centered and provide for the various levels of cognitive learning. She must also include activities that will motivate students to participate in the lesson. The lesson plans must be submitted to Ms. Henry prior to their implementation. "Lesson Plans," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.1 The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.3., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher presented three different lesson components which were not appropriately sequenced during the class period. She began the lesson with four vocabulary words which [were] not related to any lesson. It appeared that the sole purpose of this exercise was to give the students a test. The next assignment was for students to find a sentence in the story that related to words written around a bell curve. Several students asked, "What story?" Other students informed the teacher that they never got to read the story because of her stolen purse. The teacher ignored the students' comments and proceeded with the assignment amidst confusion. In the last assignment, students were instructed to answer questions on certain pages from the FCAT booklet. Because of the lack of appropriate sequencing in the lesson components, students were unable to understand the lesson presented. PRESCRIPTION PLAN ACTIVITIES The teacher will include in her lesson plans the sequence in which the components of the lesson will be presented. The teacher will also include in her lesson plans at least three (3) different methods of delivering each lesson. The lesson plans will be submitted to Ms. Henry for review and discussion prior to implementation. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not solicit responses or demonstrations from students. Students were asked only to write their responses to vocabulary words, to write sentences [with] words listed on the bell shape[d] curve and to write answers to question[s] from the FCAT booklet. At no time did the instructor ask students for a verbal response nor did she ask them if they understood the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will solicit informal responses from individual students as well as assessing students in a group. The teacher must also assess student demonstrations of the instructional objectives. This assessment must be properly labeled and dated in the gradebook. A weekly review will be made by Ms. Henry. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Multiple levels of learning were not monitored. The teacher did not appear to monitor any level of learning. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least two (2) class activities each week that require[] multiple levels of assessment of students' performance. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION A review of the teachers' gradebook and students' folders revealed only two to five teacher graded assignments. There was no documented nor observed activities in which students evaluated their own or each others' performance. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least one (1) class activity each week that requires students to assess their own classwork or the classwork of another student. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use a variety of assessment techniques to assess students' performance. A review of the gradebook revealed that only two to four grades had been recorded since the beginning of the school year. A review of students' folders revealed only two to three papers filed with dates [of] September, 1999. During the observation period, students were only required by the teacher to provide written responses to assignments. Most students did not complete the assignments. Of the 23 students present only 3 submitted papers for the FCAT assignment while 6 did so for the reading assignment and 17 for the vocabulary quiz. The teacher made no attempt to assess students' progress other than collecting papers at the end of the class. There was no evidence in the gradebook or student folders of unit tests, projects, homework, etc. PRESCRIPTION PLAN ACTIVITIES The teacher will present to Ms. Henry on a weekly basis her gradebook and sampling of students' folders showing classwork and the teacher's assessment of that classwork. The teacher must also properly label grades in the gradebook according to the assignment and date. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete "weekly on Friday," from January 3, 2000, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were no summative assessments reflected in students' folders nor in the teacher's gradebook for the period of August 31 through December 8, 1999. There were only two to four grades recorded for her five classes during the above period. There were no unit test[s] with a variety of test items. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a unit test which will include the following: 20 multiple choice question[s] 10 matching items 5 fill in the blank items 2 essay questions Submit to principal for review prior to testing of students. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. Respondent failed to timely complete the "prescription plan activities" set forth in the Second Report. On January 19, 2000, Ms. Henry presented Respondent with a memorandum advising Respondent that she was being "granted 24 hours to complete" these activities and that "[f]ailure to comply w[ould] result in disciplinary action." On January 25, 2000, Respondent was again formally observed in her classroom by Mr. Meehan. Mr. Meehan rated Respondent deficient in "preparation and planning" (Categories I.A.1. and 2. and B.1. and 2.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1. and 4.); "techniques of instruction" (Categories IV.B.1.,2., and 3.); and "assessment techniques" (Categories VI.A.1., 2., and 4 and B.2. and 3.). These unsatisfactory ratings were justified. Following Mr. Meehan's January 25, 2000, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (Third Report). The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have written lesson plans for the lesson presented. She did not have a stated objective, a homework assignment, activities or a means of monitoring student progress. PRESCRIPTION PLAN ACTIVITIES The instructor will develop weekly lesson plans containing objectives, activities, homework, and a means of monitoring student progress. She will submit the plans to Mr. Meehan for review and discussion on each Friday prior to their implementation. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The objectives of the lesson were not based on nor did they go beyond the Competency Based Curriculum or the Sunshine State Standards. Since there was no written lesson plan and learning outcomes were not communicated to students, it was difficult to decipher what the instructor was attempting to accomplish. When preparing to distribute a handout to students at the beginning of the period, she stated, "These are the wrong ones." She distributed them anyway. Since there weren't enough copies, she said, "You'll just have to share. Students worked on these handouts for approximately one hour. She then sent two students to leave the room to get workbooks. Without explanation, she assigned page forty-one. Students worked on this assignment for approximately thirty minutes. Neither of these assignments was reviewed nor evaluated. Students were given free time for the remainder of the period. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare detailed lesson plans with objectives based on the Competency Curriculum and the Sunshine State Standards. She will review these plans with Ms. Howard, Language Arts Chairperson, on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson presented by the instructor did not fill the allotted time with prepared content and instructional activities related to objectives. The first hour of the period was consumed on a vocabulary puzzle. The next thirty minutes were spent on a spontaneous assignment given from page forty-one of a workbook. Neither assignment was reviewed. The remainder of the period was given as free time. PRESCRIPTION PLAN ACTIVITIES When preparing her weekly lesson plans, the instructor will divide the time allotted for each period into thirty minute intervals. She will them state the specific activities that will take place within each of these intervals. She will discuss these timelines with Ms. Ann Howard on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION In the absence of a lesson plan, the instructor distributed puzzles and gave an assignment from a workbook. The remaining portion of the class was assigned as free time. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard, regarding how to best utilize the time allotted in block scheduling to plan her classes. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the class period. The instructor stated that she wanted to close the period by allowing students to watch thirty minutes of television but could not because Mr. Meehan was in the room. She assigned free time instead. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding how to utilize the final thirty minutes of a two hour block to enhance student learning. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Woltch was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category III.A.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use non-verbal techniques to correct off-task behavior that was evident throughout the class period. Many of the twenty-eight students in attendance were off-task for significant periods of time. During the portion of the class when students were given classwork, three students in rows B and C read Spider Man comics, while the two students in the front of row A worked on unrelated assignments. Two students in the last seats of the middle rows of the classroom slept in each other's arms. A student in front of them drew on the arms of the student next to him. Another student in the middle of row B slept and one in the front of row C played the drums on his desk. During the entire two hour block, students left their seats to walk around the room, talk, and play. The off-task behavior was so extensive that the instructor accused the observer of collaborating with students to cause distractions. A student named Torrey stated, "Mr. Meehan, Ms. Abril thinks we're down." The student in front of row A told the instructor, "They don't do that." The instructor never attempted to return students to task by the use of non-verbal techniques such as eye contact, clapping, silence or proximity. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Julie Fehr's class to see how she uses non- verbal techniques to deal with off-task behavior in her classes. She will then discuss with Ms. Fehr the techniques observed. The instructor will type a summary of her discussion and submit it to Mr. Meehan for review. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use techniques to maintain the attention of learners who were redirected. At times during the period more than thirty-three percent of the students were off-task. Students were engaged in activities not associated with the lesson. They talked, sang, slept, and worked on unrelated assignments. The instructor attempted to verbally redirect some students, but their off-task behavior was not revisited and therefore resumed when the instructor turned her attention elsewhere. One young man in row B was corrected for using a Game Boy. He began to read a comic instead. His off-task behavior was not revisited and continued uninterrupted. He proceeded to share his comics with those around him. A young man named Torrey was told to get back to his seat after walking to the side of the room to see his reflection in a mirror. When he returned to his seat, he began to sing. His off-task behavior was never revisited. Verbal and non-verbal techniques to maintain the attention of redirected learners were not evident in this instructor's classroom. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Theodora Woltch's class to observe how she deals with off-task student behavior. The instructor will prepare a typed summary of this observation and develop a plan to incorporate some of the strategies she learned to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review prior to implementation. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The inappropriate behavior manifested by students throughout the class period indicated that expectations about behavior were not made clear to learners. When seeking clarification about the puzzle assignments, students repeatedly blurted out questions without raising their hands. No standardized procedures were established for students to turn in their assignments. Some walked to the front of the room while others passed their papers to students in front of them or beside them. Students left their seats at will to walk around the room or open the classroom doors. With five minutes remaining in the period all of the students, except one, left their seats to go to the door. Some pushed the door open while others tried to close it. These inappropriate behaviors indicated that expectations about behavior had not been communicated previously. PRESCRIPTION PLAN ACTIVITIES The instructor will establish a set o[f] rules regarding appropriate student behavior and classroom procedures. She will type these rules and discuss them with Mr. Meehan before posting them around her classroom. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this instructor. Of the twenty-eight students present in the classroom more than 50 percent walked in late, thereby disturbing students attempting to do the puzzle assignment. Nothing was said by the instructor. Neither the students in rows B and C who began singing, "I'm a Soul Man," nor the students in row A who began singing an unidentified song, were given consequences as a result of their misbehavior. The instructor made no attempt to subdue or control the constant buzz created by students talking and yelling to each other across the room. Most of the students present contributed to this noise which lasted the entire two hour period. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. In addition, the teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The teacher will submit this information to Mr. Meehan for review and discussion. The "Assertive Discipline Handbook" and Mr. Meehan were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about weaknesses in their performance. The assignments for the class period were a puzzle and page forty-one of the "Buckle Down" workbook. These assignments were neither reviewed nor corrected during the class period. Since the instructor failed to monitor the performance of students as a group or individually, she was not able to provide feedback regarding inadequacies in their work. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback regarding their inadequacies. She will type a summary of the interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about strengths in their performance. The instructor failed to monitor the performance of the students on any of the assignments during this class period. She was therefore unable to acknowledge good work and adequate performance. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback about their good work. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION No suggestions for improving student performance were made by the instructor during the class period. The instructor neither orally reviewed the answers to the assignments nor individually corrected student work. Consequently, she could not make suggestions for improving student performance and an opportunity for enhancing student learning was lost. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard about how learning is enhanced when suggestions for improvement are specific to the learner and the learning task, and when they are communicated in a way that encourages continued effort. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION During this two hour class period there was no formal or informal examination of pupil work by the instructor. She made no attempt to periodically assess student progress by moving about the room making appropriate observations and asking pertinent questions. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding making informal assessments of student work by moving about the room and asking probing questions. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not solicit responses or demonstrations from pupils relative to instructional objectives. She did not ask questions that reflected lesson content nor did she require students to demonstrate what they learned. There were no informal assessment techniques used by the instructor during this class period. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding various ways to informally assess student work by having them demonstrate what they have learned during the class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have students evaluate their own and/or each other's performance. She did not request that learner's work together on checking each other's work or that pupils check their own responses against answers in the book or on the chalkboard. There was no assessment of student learning and progress made during this lesson. PRESCRIPTION PLAN ACTIVITIES The instructor will discuss with Ms. Ann Howard, Language Arts Chairperson, the advantages of having students grade their own work or each other's assignments during a class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION An examination of student folders revealed no evidence that more than one kind of assessment was made during the second quarter. Formative assessments such as a library classwork assignment and one quiz were found in some folders but there was no indication that any summative assessment was made during the second nine week grading period. PRESCRIPTION PLAN ACTIVITIES The instructor will read an article from an educational textbook or journal regarding formative and summative assessments. She will type a summary of this article and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Harrell were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Student folders did not indicate that adequate and sufficient summative assessments were made by the instructor during the second nine week grading period. There was no evidence of a summative assessment that included essay questions or performance tasks which are required of students to pass the FCAT examination. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Julie Fehr regarding types of essay questions and performance tasks that should be included in ninth grade English assessments. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. On January 27, 2000, Ms. Henry held a conference- for-the-record with Respondent to discuss Respondent's failure to complete the "prescription plan activities" set forth in the First and Second Reports. Also present were Craig Speziale, an assistant principal at Carol City, and United Teachers of Dade representatives. At the conference, Ms. Henry reviewed the First and Second Reports with Respondent and admonished her for not completing the "prescription plan activities" set forth in these reports, which, she informed Respondent, she considered to constitute insubordination for which Respondent would receive an unsatisfactory rating in the seventh TADS category, professional responsibility. Ms. Henry subsequently completed a "record of observed deficiencies/prescription for performance improvement" (Fourth Report), in which she rated Respondent deficient in Category VII.B. based upon her "fail[ure] to comply with prescriptive activities and timeliness as outlined in the [First and Second Reports]" and directed her to complete all of these "prescriptive activities" no later than February 16, 2000. A copy of the Fourth Report was provided to Respondent on January 31, 2000. On that same day, January 31, 2000, Mr. Meehan directed Respondent to report for a "post-observation conference" to discuss the Third Report. Respondent refused to go. Respondent was formally observed in her classroom for a final time on February 18, 2000. This observation was conducted by Ms. Henry. Ms. Henry justifiably found Respondent to be deficient in "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," and "assessment techniques." Because Respondent's 90-day "performance probation period" had expired without Respondent having corrected her performance deficiencies, and Ms. Henry therefore intended to recommend Respondent's termination, the report that Ms. Henry completed following the observation (Final Report) did not contain any additional "prescription plan activities" for Respondent to complete. The "prescription plan activities" described in the First, Second, and Third Reports were not completed by Respondent. On February 19, 2000, the day following Ms. Henry's formal observation of Respondent, Respondent was absent from school. Respondent telephoned the school to notify the administration of her absence, stating that she had injured her ankle and foot on February 17, 2000, and that she did not intend to return to work until after she had been seen by a doctor. Respondent never returned to work. (She did go to Carol City, however, on February 25, 2000, to pick up her pay check. During this visit, Respondent was asked to sign the Final Report, as well as a written recommendation for her termination that Ms. Henry had prepared and sent to the regional and district offices on or about February 22, 2000. Respondent refused to sign these documents.) By letter dated February 24, 2000, the Superintendent of Schools advised Petitioner that, pursuant to Section 231.29, Florida Statutes, he was recommending that the School Board, at its March 15, 2000, meeting "terminate her employment contract as a teacher, effective at the close of the workday, March 15, 2000 . . . because [she had] failed to satisfactorily correct identified performance deficiencies during [her] 90-Calendar Day Performance Probation and [because of her] gross insubordination." In his letter, the Superintendent further informed Respondent that she could contest his recommendation by requesting, within 15 days of her receipt of the notice, a hearing on the matter. Respondent requested such a hearing. Respondent was suspended without pay pending the outcome of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the ground set forth in Count I of the Notice of Specific Charges ("Unsatisfactory Performance"). DONE AND ENTERED this 8th day of September, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 8th day of September, 2000.
Findings Of Fact Richard L. Gryte holds Florida Teacher's Certificate Number 323641, issued on January 4, 1983, covering the areas of elementary education, early childhood education, emotionally disturbed education and Junior College. Until his resignation on March 13, 1984, Gryte was employed by the Seminole County School Board as a teacher of emotionally handicapped students at the Milwee Middle School located in Longwood, Seminole County, Florida. Gryte was initially hired by Douglas Smith, assistant principal at Milwee, in the summer of 1981, to serve as an emotionally handicapped (herein referred to as EH) resource teacher. This was based on Gryte's prior work history, as well as his educational background; including a master's degree in exceptional education. As a resource teacher, Gryte did not have academic responsibilities, but was used as a counselor who would work with students for a period during the day. These students would be assigned to the resource room by their regular classroom teachers, primarily if they had problems regarding behavior. As a teacher involved with emotionally handicapped students, it was necessary for Gryte to prepare forms known as Individual Educational Plans (hereinafter referred to as IEP's). The IEP's were required by Federal and State law and were necessary in order for the school district to obtain funding. From the beginning of his employment and assignment at Milwee Middle School, Gryte had difficulty performing administrative duties regarding documentation and other paperwork. Gryte recognizes that correct documentation is the responsibility of a good teacher, but also acknowledges his weakness in that area. When this problem was brought to the attention of Douglas Smith, assistant principal, he immediately sent memos and spoke with Gryte regarding the problem. During the 1981-82 year, out of the 22 IEP's necessary for Gryte to complete, at least 12 were incomplete or not done. The IEP's that were done were incomplete in that they lacked objectives, goals and other qualitative methods by which to determine the progress of the child. Even as a resource teacher, Gryte failed to prepare lesson plans which were required of all teachers. In fact, Respondent failed to prepare lesson plans for the entire 1981-82 school term, despite being counseled and informed about the necessity of preparing and submitting lesson plans. Overall, Gryte's teaching performance for the 1981-82 school term was not in keeping with minimum standards required of his profession. In addition to the paperwork and other administrative tasks, Gryte had a problem maintaining classroom discipline and control and would violate school rules by leaving the class unattended. During the 1982-83 school term, Mr. Willie G. Holt became the principal at the school. He first became concerned regarding Gryte's performance because of safety concerns he had for student's in Gryte's resource class. Due to the nature of these children and their behavioral problems, it was a policy of the school that children would not be left alone and unattended. Gryte knew of this policy. During the 1982-83 school year, Gryte would periodically leave his class unattended. On two occasions in the spring of 1983, a female student was involved with and performed sexual acts including masturbation and oral sex in the presence of two male students. These acts occurred when Gryte left his class unattended. Gryte recognized that it was wrong to leave the class unattended, but felt he could trust the boys involved and was only gone for a brief period of time. Due to concern for the safety and welfare of the students entrusted to Gryte and because of a need to relieve the previous self-contained teacher, Mr. Holt, school principal, and Mr. Smith, assistant principal in charge of the exceptional education program, decided to place Gryte in the self-contained EH class for the 1983-84 school year. This was thought to be appropriate since the self-contained class had a full-time aide, Betty Manly, who would always be present in the event Gryte would leave the class unattended. Gryte objected to this assignment, but based on his certification and education, he was qualified to be in the self- contained classroom and he was so assigned. Gryte's teaching performance in the self-contained classroom during the 1983-1984 school term was extremely unsatisfactory in all aspects. As in previous years, Gryte was required to submit weekly lesson plans. This was a requirement of all teachers. As in prior years, Gryte was derelict in preparing his lesson plans. From the beginning of the school term until January, 1984, he submitted lesson plans for the first five weeks, but failed to submit any lesson plans thereafter. He next submitted lesson plans for two weeks during the weeks of January 20 and 27, 1984. Thereafter, he did not submit any additional lesson plans until the date of his resignation in March, 1984. The assistant principals, Gordon Hathaway and Douglas Smith, repeatedly instructed Gryte to submit lesson plans timely, but he failed to do so. Even the lesson plans which were submitted were not proper in that they were too generalized and did not serve the proper function. In addition, for the 1983-84 school term, Gryte still had problems completing his IEP's timely and in a proper manner. It was a concern of the school officials that if they were ever audited, they would lose funding. Gryte was counseled by Dr. Daniel Scinto and Dr. Robert Carlton regarding the preparation of IEP's, as well as class management, but little improvement occurred. Gryte's classroom was extremely noisy, unruly and out of control. Dr. Carlton worked with Gryte on several occasions regarding implementation of behavioral management techniques. However, no improvement was noted. The excessive noise from Gryte's classroom was disturbing to the adjoining classes. Mr. Holt started receiving complaints from other teachers. Mrs. Poole indicated that students in her classroom actually complained about the noise from Respondent's class, as did she. The teacher's aide, Betty Manly, observed that Gryte did not assert control. He allowed the students to do as they pleased and demonstrated an apparent lack of classroom control. Gryte himself recognized that there was an excessive amount of noise in his class which was disturbing to other teachers. Some of the noise was due to Gryte's policy of allowing students to use curse words and engage in verbal altercations, which at times led to physical violence. He would permit the students to use "damn", "hell", and other similar curse words. On occasion, fights would break out among the students because Gryte would allow an argument to become too heated and would not assert control. He thought it was necessary for the children to have the freedom to release their anger in this manner. He ultimately hoped to be able to work with the students and this was part of his counseling therapy. Gryte often imposed corporal punishment as a means of discipline with the students. However, he frequently imposed the punishment in violation of State law and School Board policy. The School Board policy, as set forth in the student disciplinary code, requires that all corporal punishment be administered in the presence of another adult and not administered in the presence of other students. On numerous occasions, Gryte paddled a student in the classroom without the presence of another teacher or administrator as a witness and also while in the presence of other students. This practice was against direct orders of the principal. In addition, students were embarrassed by punishment being administered in front of other children. Further, the practice is not appropriate when dealing with any student, but even less so when dealing with emotionally handicapped students. On one occasion, Gryte lined the entire class up for "licks." The noise of the paddling and the student's yelling brought an adjoining teacher to see what had occurred. When she arrived, a student was lying on the floor and his leg was shaking and the student was grimacing and in pain. The teacher advised Gryte not to administer any more punishment, because it was in violation of the school policy. During the first nine weeks of the 1983-84 school year, Gryte failed to provide grades for the students in his class. He was unable to give grades because students had not performed a sufficient amount of work in order for Gryte to evaluate their progress and to assign a competent grade. This was in violation of the school policy as well as the State law, and was upsetting to the administration. The school was required to send blank report cards, with the exception of P.E. grades. Gryte was told to produce his grade book and test papers which had been performed by the students. A review of the grade book showed tests and work had not been required or performed or recorded in order to evaluate the students. What papers were produced by Gryte were not of sufficient quality or quantity to effectively grade the students. The policy of the school was to assign enough work each week to allow the students to receive periodic grades. Gryte recognizes his duty to maintain paperwork and other documentation. He understands this is part of being a competent and effective teacher, even though he would place greater emphasis on the students. Jeanette Burgess was a female student in Gryte's self- contained classroom his last year at Milwee. Gryte had a propensity to touch Jeanette in an inappropriate and unprofessional manner. He would periodically touch her on her face, ears and buttocks. This was embarrassing to Jeanette. On one evening, Gryte called Jeanette's home to speak with her. Her mother, Diana Oliver, answered the phone and inquired as to the nature of the call. Gryte indicated it was a private matter and he needed to speak with Jeanette personally. This offended the mother and she refused to allow him to speak with her daughter and advised him that any matters pertaining to Jeanette in school should be discussed with her. In addition, in the mother's opinion, Gryte had been drinking. She formed this opinion based on slurred speech and other mannerisms. On another occasion, Betty Manly entered the classroom and discovered Gryte standing extremely close to Jeanette and, in Ms. Manly's opinion, touching Jeanette inappropriately. Jeanette was forced back against Ms. Manly's desk and was obviously embarrassed by the situation. Gryte had dismissed the other students to attend P.E. class and was left in the room alone with Jeanette. The situation was upsetting to Jeanette, because she dropped her head and started crying when she was questioned about what had occurred between Gryte and her. Following the telephone incident, Gryte, the principal, and Jeanette's mother had a conference and Gryte was directed not to administer corporal punishment or otherwise touch Jeanette for any reason. Gryte violated this direct order in that he did subsequently administer corporal punishment to Jeanette. Another student in Gryte's self-contained class was a child by the name of Kelly Owens who had self-destructive tendencies and frequently would injure herself. On one occasion, Gryte sent her to the office alone and on the way, she took a piece of glass and cut her wrist and neck, not severely enough to cause death, but enough to result in extensive bleeding. Gryte had been specifically advised not to leave this child unattended. On one occasion, he gave her a pass to leave the school and go to an area known as the "swamp". This is an area off campus where students gather to smoke marijuana and allegedly participate in other similar activities. This occurred after a conference with the child's parents which Gryte attended and in which it was emphasized that the child needed close supervision. On another occasion, Gryte actually left the child in the classroom asleep. This was at the end of the school day. Another teacher came by and found the child sleeping in the class by herself. Gryte indicated he was unaware that Kelly was still in the classroom. In addition to the incident involving the telephone conversation with Jeanette Burgess' mother, Gryte appeared at an open house held on the school campus in the beginning of the 1983-84 school term. It was apparent that Gryte had been drinking. Those teachers present were definitely under the·impression that he had been drinking too much due to his slurred speech and demeanor. When confronted by Mr. Holt, Gryte admitted he had been drinking, but stated he only had one drink prior to the meeting. Based on Gryte's conduct and performance at Milwee, the principal and assistant principal felt he was neither effective nor competent and would not employ Respondent in a teaching position. Respondent recognizes he is not qualified and competent to teach certain areas of his certification. He basically desires to be a counselor and not a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order revoking the teaching certificate of Richard L. Gryte for a period of three years, subject to reinstatement thereafter pursuant to Section 231.28(4)(b), Florida Statutes. DONE and ORDERED this 11th day of April, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: L.Haldane Taylor, Esquire 331 East Union Street Jacksonville, Florida 32202 Richard L. Gryte 7703 Meadowglen Drive Orlando, Florida 32810 Karen B. Wilde Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 Ms. Marlene Greenfield, Administrator Professional Practice Service 319 West Madison Street, Room 3 Tallahassee, Florida 32301 APPENDIX The following constitutes any specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Petitioner's Proposed Findings of Fact 1-31 are all adopted in substance. Rulings on Proposed Findings of Fact of Respondent Respondent filed no Proposed Findings of Fact.
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(g) and (j), Florida Statutes (2012), and Florida Administrative Code Rule 6A-10.081(3)(a), and if so, what penalty should be imposed.
Findings Of Fact Based on the demeanor and credibility of the witnesses and other evidence presented at hearing, and upon the entire record of this proceeding, the following facts are found: Respondent holds Florida Educator’s Certificate 739881, covering the areas of Physical Education and Exceptional Student Education, which is valid through June 30, 2015. He has held a certification in Florida since 2005. Respondent is African- American. At all times relevant to the charges in the Administrative Complaint, Respondent has been employed as an In- School Suspension (ISS) Teacher at the CARE Program in the Calhoun County School District (District). The CARE acronym is shorthand for character, achievement, respect, and education. The CARE Program is a second-chance school for students who have been suspended for more than ten days, have been suspended for drug offenses, or who are currently in a juvenile facility. The first time a student is assigned to the CARE Program, it is for a 90-day term. If the student does well, he or she returns to their regular school. The second referral is for a period of 180 days; the third for a year. The CARE Program generally has approximately 30-40 students at a time. In November 2012, the program had approximately 31-32 students. The CARE Program is located at a facility that used to house a vocational complex, next to the adult school. Also housed in this complex is the In-School Suspension (ISS) class, where students serve in-school suspensions of less than ten days. Students are referred to the ISS class for behavior such as tardiness and being disruptive in the classroom. The number of students in the ISS classroom varies, because it depends on how many students have been referred. There is a limit to how many students can be in the ISS class, because each school has a cap on the number of students it can refer at any given time. Testimony varied as to how many students were present at the time of the incident giving rise to this case. The most reasonable and credible testimony indicates that on November 14, 2012, there were approximately 15-20 students in the ISS class. There was adequate room in the ISS classroom for the number of students in the class. Some time prior to the incident giving rise to this case, part of the complex where the CARE Program and the ISS class were housed underwent construction. As a result, several staff members working in the complex had tires punctured because of construction debris in the area. The District would reimburse employees for repairs to tires that were punctured if the employee submitted the documentation related to the repair. Respondent had requested two new tires, as opposed to repair of his tires. Although the record is not clear when Respondent made his request, there was some delay in any action being taken to address it. Wilson McClellan was the superintendent of the District from 2000 to 2004, and then again from 2008 to 2012, after which he retired. Mr. McClellan, who is Caucasian, was an educator in Calhoun County for approximately 25 years. He had worked with Respondent in a summer recreation program at some point before Respondent was hired by the District. Mr. McClellan had told Respondent that if there was an opening in Calhoun County, he would give Respondent a call and let him know. On November 13, 2012, Mr. McClellan was defeated in his bid for re-election as superintendent. The next day, he visited the CARE Program and spoke with several of the staff there, presumably to touch base with people with whom he had worked. He came to the CARE Program around midday, and class was in session. While he was there, Mr. McClellan went to speak with Respondent about Respondent’s pending request for reimbursement for his tires. While repairs had been authorized, no other staff member had requested new tires. Mr. McClellan told Respondent that he would need to submit documentation for the reimbursement for action by the School Board, as opposed to the superintendent, because Mr. McClellan did not feel comfortable authorizing the expenditure when no one else had requested reimbursement for new tires instead of repair of existing ones. Mr. McClellan knocked on the door to the ISS classroom and he and Respondent went into the small office adjacent to it. When he told Respondent about the need to submit the reimbursement matter to the Board, Respondent became angry and walked back into his classroom. Respondent told McClellan, in the presence of his students, that if he had a different last name and a different color, then the results would have been different. McClellan denied Respondent’s claim and left the classroom. Mr. Thomas’s classroom had an inside door, going into a hallway, and an outside door that led to a covered pavilion area with picnic tables. Also adjacent to the area with the picnic tables is Barbara Hathaway’s office. Ms. Hathaway served as the Dean of Students for the CARE Program, a position that functions much like a principal does in a traditional school. When Mr. McClellan left the classroom, he went to the area with the picnic tables. Ms. Hathaway saw him there and came out to speak with him. While Ms. Hathaway and Mr. McClellan were speaking, Respondent came out of his classroom and asked Ms. Hathaway to get someone to cover his class because he was “pretty hot” and needed to walk. According to Ms. Hathaway, Respondent was agitated and upset. She did not understand him to mean he was overheated based on temperature, but rather that he was upset or angry, and her testimony is credited. Without waiting for coverage for his class, Respondent walked away from the classroom and the area where Mr. McClellan and Ms. Hathaway were standing and up the sidewalk. Ms. Hathaway left to ask another staff member to cover the classroom and was going to walk back outside when she heard Mr. Thomas speaking loudly. She could not hear what Mr. Thomas said, but his tone was agitated. She noticed that the ISS classroom door to the outside was open, and the students could hear the heated conversation between their instructor and the superintendent, so she opened the inside door and told a student to shut the outside door. Ms. Hathaway thought from the students’ reactions that they were enjoying the interchange between Mr. McClellan and Mr. Thomas. She used her phone to call for a resource officer because she felt the situation was agitated and that someone should be present to intervene. After Ms. Hathaway walked inside to arrange for coverage for the classroom, Mr. Thomas had walked back down the sidewalk to Mr. McClellan. He repeated to Mr. McClellan that in this county, if he had a different last name and a different color, it would probably be a different result. Mr. McClellan became impatient and said, “shut up Ed, I am just not wanting to hear any more about that.” Mr. Thomas walked closer to him, glared and said, “if you ever say shut up again to me, I will be the last black man you ever say that to.”1/ Mr. Thomas is a large, imposing figure, and according to Mr. McClellan, he spoke in a loud, angry voice and “bowed up” in a threatening gesture; however, he was never close enough to the superintendent to actually strike him. While Ms. Hathaway could not hear the actual language being used, both Ms. Barbee, who came to cover the ISS classroom, and the students in the classroom were able to hear the colorful exchange. Ms. Barbee testified that she did not remember the actual conversation, but that there was “some cussing and hollering.” Her statement written the day of the incident indicates that Mr. Thomas used the term “f**k.” Likewise, P.G., one of the students in the classroom, testified that Mr. Thomas told Mr. McClellan, “don’t tell me to shut the f**k up,” and for him to “shut the f**k up.” P.G. believed the students in the room were shocked at the interchange.2/ After this exchange, Respondent once again walked away from Mr. McClellan and up the sidewalk away from his class. On both occasions, Respondent was five to six classroom lengths away from his classroom, and unable to monitor in any way the actions of his students. Ms. Hathaway, as noted above, was not present for this heated exchange and did not hear what was said. When she returned outside, Mr. Thomas was standing on the sidewalk up the hill from the classroom. She spoke to Mr. McClellan, who told her about the conversation with Mr. Thomas. What he told her involved the reimbursement issue and not any complaint about overcrowding. About that time Warren Tanner, the school resource officer, came around the corner. When he arrived, he saw Ms. Hathaway and Mr. McClellan sitting on a bench under the pavilion, and Mr. Thomas was standing at the end of the driveway at the end of the building. Mr. Tanner asked what had happened, and Mr. McClellan told him that Mr. Thomas had threatened him. Mr. Thomas walked back down the hill to where the others were standing, and Mr. McClellan told him to go home for the rest of the day. Mr. Thomas went into his classroom briefly, then came out and asked Mr. McClellan if he was sending him home for the rest of the day, and was told, “yes.” Mr. Thomas got in his truck to leave, then got out and asked Mr. Tanner if this was going to be a complaint, and Mr. Tanner told him, not at this time. Mr. McClellan returned to his office and called David House, the school board attorney. He related the events of the morning and told Mr. House that, in light of past behavior by Mr. Thomas and the current incident, he was considering terminating Mr. Thomas. Later that afternoon, Vicki Davis, assistant superintendent for the District, called Mr. Tanner and asked him to collect statements from those who witnessed or heard the morning’s events. Mr. Tanner got statements from Mr. McClellan, Ms. Hathaway, Ms. Barbee, and several students in Mr. Thomas’s class.3/ On Thursday, November 15, 2012, Mr. McClellan wrote to Mr. Thomas advising him that he was suspended with pay, effective immediately. Respondent had been the subject of discipline previously, and there had been concerns expressed about his behavior during his employment in Calhoun County. For example, in January 2008, he received a formal reprimand for allegedly confronting a fellow teacher in front of students in a loud, belligerent, and profane manner.4/ On June 3, 2008, Respondent received a second reprimand for allegedly leaving a magazine with an unclothed woman on the cover in the Health Building bathroom where it could be viewed by students. On January 13, 2011, Neva Miller, the principal of Blountstown Middle School, wrote a lengthy letter to Superintendent McClellan detailing several alleged incidents involving Mr. Thomas that caused her to “express concerns that I have as to the effectiveness and concerning anger control abilities of Edward Thomas.” A two-page document titled “Ed Thomas Issues Calendar Year 2011” was placed in his personnel file, recounting a series of concerns regarding alleged deficiencies in his performance. On February 23, 2012, Ms. Hathaway, as Dean of the CARE Program, documented an alleged incident involving a ninth-grade student.5/ On December 11, 2012, Mr. McClellan’s successor, Superintendent Ralph Yoder, issued a Notice of Charges for Dismissal to the Calhoun County School Board, recommending Respondent be suspended without pay and dismissed from employment by the District. The Notice of Charges stated, “Mr. Thomas has a history of engaging in insubordinate, hostile and confrontational behavior toward faculty members and administrators, which began in 2007 and culminated in an incident that occurred on November 14, 2012, involving the former Superintendent of Schools, Mr. Tommy McClellan. Mr. Thomas has been repeatedly instructed by persons in authority to correct his behavior, but he has failed to do so.” The Notice goes on to describe 13 separate incidents and references several others. Only the incident involving Mr. McClellan on November 14, 2012, is alleged in the Administrative Complaint, and Petitioner presented no evidence to prove what happened with respect to the other incidents. No findings are made concerning the validity of the other allegations in the Notice of Charges. It is considered solely to show that the District took action with respect to Respondent’s employment. Likewise, it is unclear what, if any, proceedings were conducted with respect to the Notice of Charges before the school board. Respondent acknowledged that his employment was terminated as of December 11, 2012, the day the Notice was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(g) and (j), as well as Florida Administrative Code Rule 6A-10.081(3)(a). It is further recommended that the Commission suspend Respondent’s teaching certificate for one year; that he submit to an evaluation for anger management by the Recovery Network on terms to be set by the Education Practices Commission; and that upon re-employment as an educator, Respondent be placed on probation for a period of three years, with terms and conditions to be set by the Commission. DONE AND ENTERED this 19th day of June, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2015.
