Findings Of Fact Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Donald L. Griesheimer, Director Education Practices Commission Department of Education The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issue to be determined is whether Petitioner has sufficient grounds to support dismissal of Respondent from employment.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher by the School Board and currently holds a professional services contract. He began working for the School District on or about March 2007, in the middle of the 2006-2007 school year. His first assignment was at Holmes Elementary School where he worked on a “waiver,” since he did not have an elementary education certification. The principal asked him to get his certification in elementary education, which he did. According to Respondent, he was asked to start working early because the principal did not have enough teachers. During that year, he was evaluated as meeting standards in all areas of evaluation and was rehired for the 2007-2008 school year. Prior to becoming a teacher in Miami-Dade County, Respondent served in the United States military from 1978-1985, and had worked as a registered nurse. He holds an associate’s degree from Miami-Dade College, a bachelor’s degree from Florida International University (“FIU”), two master’s degrees from FIU, an academic certificate in gerontological studies from FIU, and an academic teaching certificate from FIU. For the 2007-2008 school year, Respondent worked at Little River Elementary School (“Little River”). The principal at Little River asked Respondent to work on another “waiver,” this time for teaching English as a Second Language students (“ESOL”). After completing the necessary coursework, Respondent received an ESOL certification. Respondent remained at Little River through the 2008-2009 school year until he was involuntarily transferred to Scott Lake Elementary School (“Scott Lake”) for the 2009-2010 school year. During the latter two years at Little River, he was evaluated as meeting standards in all areas. According to Respondent, he was transferred to Scott Lake because the administration of Little River objected to the number of student discipline referrals (“SCMs”) he was writing on students. Respondent reports having written somewhere between 600 and 700 SCMs on students over the years. Respondent freely admits he wrote many SCMs at every school he worked at and highlights that fact as an excuse for why he performed poorly. During Respondent’s first three years of employment at Holmes Elementary and Little River, he was evaluated across the board on his annual evaluations as “Meets Standards.” During this period of time, the only other rating an employee could receive was “Does Not Meet Standards.” During the 2009-2010 school year, Respondent’s principal for his first year at Scott Lake was Valerie Ward. During the 2009-2010 school year, the School District made changes to the teacher performance evaluation system. Use of the Instructional Performance Evaluation and Growth System (“IPEGS”) was implemented. The IPEGS Summative Performance Evaluations (“SPEs”) were now comprised of eight Performance Standards, where a teacher could be rated “Exemplary,” “Proficient,” “Developing/Needs Improvement,” or “Unsatisfactory.” In her first year with Respondent, Ms. Ward rated him “Proficient” in all eight standards. At the end of the 2009-2010 school year, Ms. Ward placed Respondent on a 90-day performance probation pursuant to section 1012.34. During this 90-day probation process, he was observed by administration on at least five different occasions, was put on several improvement plans, and had several meetings with administrators. The 90-day probation process is very time- consuming for both the subject employee and the employee’s administration. In other words, it is not the preferred task of a busy principal, unless he or she must, and then only when it is warranted by poor performance. Respondent believes Ms. Ward placed him on performance probation to retaliate against him because he complained about the temperature in his classroom. This is the first of many excuses and justifications Respondent has offered to explain criticisms of his performance by administrators. For the 2010-2011 school year at Scott Lake, Respondent was again evaluated as proficient in all areas. On or about April 2012, Principal Lakesha Wilson- Rochelle assumed Ms. Ward’s role at Scott Lake. Principal Rochelle signed off on Respondent’s summative evaluation during the 2011-2012 school year, but did not fill it out, since it had already been completed by someone else. The score placed Respondent in the “needs improvement” category. She signed it only because she was required to do so, and the summative evaluation rating she gave him for the next school year was even worse by several points. It was also during the 2011-2012 school year that IPEGS underwent another change. Now there were seven professional practice standards on which teachers were evaluated and one standard that was based on actual student data. Use of IPEGS IPEGS was approved by the Florida Department of Education (“FDOE”) for all years relevant to this case. The IPEGS processes from the 2013-2014 school year forward consisted of the following: Each teacher that had been teaching for more than two years received one formal observation. If during that observation the teacher’s performance was sufficient, nothing more need be done, outside of a summative evaluation at the end of the year. However, informal feedback is given to teachers throughout the year after classroom walkthroughs and through other means. If a teacher was observed to be deficient in one or more standards during the formal observation, the teacher and administration would engage in something called “support dialogue” in which support in various forms is provided to the teacher, so that the deficiencies can be remediated. If the teacher still exhibits performance deficiencies after the support dialogue, they are placed on the 90-day performance probation. While on performance probation, the teacher is observed another four times after the initial observation. After the second, third and fourth observations, if the teacher has not remediated, the administration develops an improvement plan, which must be followed. The improvement plan gives the teacher assignments and assistance to aid him or her in remediating any deficiencies. Also, each teacher, regardless of whether placed on performance probation, receives an SPE, as well as a Summative Performance Evaluation Rating (“SPE Rating”) of either “Highly Effective,” “Effective,” “Developing/Needs Improvement,” or “Unsatisfactory.” In addition to the seven professional practice standards, a data component is also factored into the SPE Rating known as the VAM. The VAM As explained by Director of Research Services Dr. Aleksander Shneyderman (“Dr. S”), the VAM is a statistical model that attempts to measure a teacher’s impact on student learning growth through the use of a multi-level lineal regression. Dr. S has been working with the VAM, since its inception in 2010-2011. He has studied it and keeps abreast of Florida’s rules and regulations of how to calculate it. Dr. S and his office calculate what is called “Local VAM” for the School District. He also provides trainings to School District employees on the use of the VAM. Dr. S was tendered and accepted in this proceeding as an expert in VAM calculation. Local VAM is usually calculated in September/October by his office after the previous year’s testing data become available. Various assessments are used to create the Local VAM. It is calculated in compliance with state statutes, and the methodology is approved each year by FDOE. Also, the methods for calculating the Local VAM are bargained for and ratified by the United Teachers of Dade (“UTD”) teacher’s union. The Florida VAM is calculated by the State using a model that is approved by the Florida Commissioner of Education. The results of the Florida VAM are given to Dr. S’s office by the State. The Florida VAM is created using the Florida Standards Assessment (“FSA”). In the 2013-2014 and 2014-2015 school years, Respondent’s Local VAM scores were calculated by Dr. S’s office and based upon his students’ results on the Stanford 8 Achievement Test, 10th edition. UTD approved the methodology in VAM calculation for both of these years. For the 2015-2016 school year, Respondent’s VAM score was the Florida VAM in English language arts for fifth grade. The goal of the VAM is to measure a teacher’s effectiveness on student learning growth. In order to do this as accurately as possible, students are compared to similar students for an “apples to apples” comparison. Only students with the same demographic characteristics, as well as the same prior year’s test scores are compared to one another. The demographic factors considered are English Language Learner (“ELL”) status, gifted status, disability status, relative age (which considers whether a child was retained in a previous grade), and attendance (which was added in 2014-2015). Student demographics and the prior year’s test scores must be exactly the same. Based on these demographics and past scores, an expected score is created for each student. If the student exceeds that score, the credit for that success is given to the teacher. The School Board and Dr. S concede that the VAM does not account for every possible student performance variable, because, simply put, this would be impossible, since there are a limitless number of factors that could be considered. Moreover, certain factors are forbidden to be used by the Legislature, including socioeconomic status, race, gender, and ethnicity. (See § 1012.34, Fla. Stat.). Respondent argues that because not every imaginable factor that might affect a student’s grade is captured, that the VAM is not useful. Respondent claims that factors beyond the teacher might be causing poor performance, for example: lack of parental engagement. While levels of parental engagement could impact student performance, the School Board states that it is following state statutes to the letter and doing the best it can within the applicable statutory framework. Moreover, just as factors outside of consideration might hurt student performance, other factors might enhance performance, and the teachers receive those possible benefits as well--for example, if parental engagement is good. Those benefits would flow to the teacher, despite not having earned them through his or her personal efforts. Moreover, the VAM score ranges that are used to classify teachers are bargained for with UTD. The ranges have confidence intervals developed through the application of margin of error calculations that mitigate uncertainty to protect and “safeguard” teachers from unfair classifications. In many instances these safeguards give the teachers the benefit of the doubt to make sure they do not fall into the lowest category, which is “unsatisfactory.” Noticeably absent from these bargained for “safeguards” is any mention of how much instructional time a teacher must have with a class before those students’ data can be used to calculate a teacher’s VAM score. UTD has not bargained for any special rules designating when teachers can and cannot be held accountable for their class’ data based on the time they have instructed that class. As such, the only relevant inquiry is whether those students are with that teacher during the FTE period in February. Also, the law (see § 1012.34, Fla. Stat.) makes no mention of any minimum length of instructional time necessary to hold a teacher accountable for his or her students. The 2013-2014 School Year at Scott Lake Refusal to teach basic Spanish In May 2013, near the end of the 2012-2013 school year, Principal Rochelle advised Respondent that he would be teaching a kindergarten class for the 2013-2014 school year and that he would be required to teach them one hour of introductory Spanish. In an email to Principal Rochelle, Respondent asserted that he believed he was being assigned to teach Spanish to the kindergarteners in retaliation for his extensive reporting of student SCMs. In that same email, he advised her that he did not want to teach Spanish. Prior to being advised of this assignment, the School District conducted a language proficiency assessment for Respondent with both a written and verbal component, which he passed. Principal Rochelle had personally seen Respondent speak fluent Spanish to her school secretary and the art teacher. Because Respondent spoke fluent Spanish, or, at least, “conversational” Spanish (as admitted by Respondent’s counsel in his opening), she gave him the assignment. Moreover, as a principal, she had the right to assign Respondent as she saw fit. School Board Policy 3130 - Assignments reinforces this assertion stating, in relevant part, “Instructional staff members may be reassigned to any position for which they are qualified in order to meet needs of the District and pursuant to the collective bargaining agreement.” In order to teach the one-hour basic Spanish component of the class, Respondent did not need to be certified to teach Spanish. He only needed an elementary education certification, which he had. He even attended a training class on the implementation of the Spanish program. Respondent admits he can speak Spanish, write basic Spanish, has taken Spanish classes and passed the School District’s proficiency exam. Curiously, he objected to them giving the proficiency exam to him based on the grounds he was “singled out” for having a Hispanic last name, having been overheard speaking the language, and because he is not from a Spanish-speaking country. These are not reasonable objections when the School District explained the objective reasons listed above regarding Respondent’s qualifications to provide the basic- level Spanish instruction. Respondent persisted in his belief that he is “not qualified” to teach kindergarten Spanish despite all the evidence to the contrary. Respondent simply refused to do something that he was entirely capable of doing and that was within his ambit of responsibilities. He described one of the lessons he was allegedly incapable of teaching as follows, “You put a CD in the player. The kids sing songs in Spanish. The kids cut out pictures of objects and match them to a picture with the word in Spanish.” The kindergartners in his class did not speak Spanish; they spoke English. The Spanish component of the class was very basic and involved things like vowels, colors, puppets, basic books, and vocabulary words. Contrary to Respondent’s assertions, no complex grammar or sentence structure was involved. Such things are not even part of ordinary English kindergarten instruction, as admitted by Respondent. Moreover, he was provided with materials from which to draw the instruction. Principal Rochelle does not speak Spanish herself, yet believes she could teach the Spanish component, as it is a “piece of cake.” Respondent filed a grievance regarding the Spanish assignment. In order to appease and accommodate Respondent, Principal Rochelle eventually sent a Spanish teacher to his room to teach the Spanish component. However, Respondent then complained that the grades she was entering still had his name attached to them in the computerized grading system. Finally, the principal decided to move him to a first-grade class in early November 2013. Undoubtedly, the requests of Respondent led to this assignment change. Formal IPEGS observation On March 11, 2014, Principal Rochelle performed her formal observation of Respondent pursuant to IPEGS. On that day, no performance deficiencies were noted. However, throughout the year, Principal Rochelle had conducted many informal observations and walkthroughs of his classroom and had already provided him feedback regarding his performance and her expectations. Examples of that feedback can be found in an August 27, 2013, email from Principal Rochelle to Respondent. Moreover, according to Principal Rochelle, teachers tend to be on their best behavior during these observations–-which makes sense, because they know the boss/evaluator is watching. The formal observation is also only a snapshot in time of the teacher’s performance on a particular lesson; it is not a reflection of the entire year’s performance. Respondent has argued that Principal Rochelle has retaliated against him. If that were the case, this observation would have been a perfect opportunity to retaliate against him. However, she found no deficiencies in his performance on this day. Scott Lake SPE—Professional Practice Throughout the rest of the school year, Principal Rochelle made other credible observations regarding Respondent’s performance. Despite her counseling that he meet with parents, he refused to do so. He refused to participate in activities, including field trips, school celebrations, and award ceremonies. Other teachers actually had to hand out awards for him at the ceremony. He refused to implement group instruction techniques and did not take advantage of the presence of reading and math coaches. He refused to implement progressive discipline and “red, green, yellow” behavior management techniques. He refused to implement various discipline strategies laid out in the Student Code of Conduct and school-wide discipline plan prior to writing SCMs on students. Principal Rochelle recalls that he wrote approximately 25 SCMs on one student within the first nine weeks of school and made no attempt to address the behavior issues with the student’s parents. At one point Principal Rochelle accommodated his request to have a student removed from his class. Since this was only Principal Rochelle’s first full year as principal of Scott Lake, and she was still new to the school, she tended to give the teachers the benefit of the doubt when completing their SPEs. She also had a few teachers who had to be terminated for lack of professionalism that were more of a priority for her than Respondent. As such, she rated Respondent as “effective” in six standards on his SPE and as “developing/needs improvement” for the Communication standard. In her view, “effective” is akin to a “C” grade, whereas “highly effective” is “A plus/high B” status, “developing/needs improvement” is a “D,” and “unsatisfactory” is an “F.” When asked what Respondent would have rated himself in these seven standards, he testified he would have given himself five “highly effectives” and two “effectives.” He believes Principal Rochelle rated him lower than she should have as a result of retaliation against him for him not wanting to teach Spanish. This is Respondent’s second claim of retaliation against Principal Rochelle, and third claim of retaliation overall. Principal Rochelle’s denial of such retaliation is credited based upon her testimony at hearing and the exhibits offered in support. Despite the fact that Respondent’s 2013-2014 SPE seemed adequate to a casual observer (with the only obvious blemish being the “developing/needs improvement” in the Communication standard), when compared to his peers, a different story emerges. His professional practice points total put him in the bottom .8 percentile for all teachers district-wide and in the bottom 2.6 percentile for all first-grade teachers district-wide. Without belaboring the data, Respondent’s professional practice scores are at the bottom of the barrel, regardless of how you spin them. Scott Lake VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 12.5 points–-the lowest possible score. He was one of 11 first-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2013-2014 school year was “Needs Improvement.” Only 29 percent of his first-grade students met or exceeded their performance expectations. Respondent’s VAM was based on the performance of his first-grade students. Respondent believes that, since he was moved to the class in early November 2013, and the SAT exam was given in April, he should not be held accountable for their performance. In order for him to have a fair shake, he claims he would have had to be there instructing the students on week one. Respondent says the amount of time he was given was not fair because, “if I’m the lowest teacher in Miami-Dade County, and here for termination, no, sir, I don’t think it was fair.” If the rule Respondent proposes were implemented as policy, any teacher could simply avoid responsibility for their student’s performance by requesting a transfer sometime after the first week of the year. It is also not uncommon for teachers to have students added or subtracted from their classes throughout the year for a multitude of reasons. This is a fact of life that teachers have to be able to cope with in the ordinary course of business for the School District. Moreover, and somewhat ironically, if another teacher had been teaching Respondent’s students for a portion of the year, based on his SPE Ratings and student achievement data, Respondent probably would have had better scores. The students would likely have been getting a more effective teacher than he. Respondent also claims Principal Rochelle gave him a lower functioning group of students, who were behind in their learning. He explained that he knew they were low-functioning because he gave them “STAR tests” to gauge their ability levels. When pressed on cross-examination, Respondent admitted that he only tested his own students and never anyone else’s. Therefore, it would be impossible for him to know whether his students were any lower-functioning or further behind than any other teachers’ students. Respondent’s doubtful claim is further undercut by Principal Rochelle’s credible testimony that she selected the members of his first-grade class at random from overcrowded classrooms. Respondent’s claims that he was robbed of instructional time by field trips and fundraising activities, matters that are required of all teachers, are unconvincing excuses for his students’ poor performance. The 2014-2015 School Year at Norwood Shortly after the start of the 2014-2015 school year, Respondent requested a hardship transfer to Norwood Elementary School (“Norwood”) because the school day at Scott Lake was going to be increased by one hour. Despite the fact that he would have been compensated approximately $4,500.00 for this time, he chose to transfer schools. Principal Kevin Williams (or Dr. Williams) had a teacher on leave so he assigned Respondent to fill that gap. Respondent started teaching a kindergarten class, but was moved to a second-grade class during the first week of school. Prior to conducting a formal IPEGS observation of Respondent, Dr. Williams had performed several walkthroughs of his classroom. Based on these walkthroughs, Dr. Williams advised Respondent that he was not properly implementing the school discipline plan. Respondent also refused to implement “grouping” of the students during instruction time. Dr. Williams also had a reading coach model lessons for Respondent and assigned him a teaching assistant. Respondent was the only teacher who received this level of assistance. Dr. Williams even went so far as to have two meetings with UTD prior to his formal evaluation of Respondent in order to help him. By October 2014, Dr. Williams had already explained his expectations to Respondent. Formal IPEGS observation On October 1, 2014, Principal Williams performed the formal IPEGS evaluation of Respondent. Principal Williams noted no deficiencies on that day. Generally speaking, Principal Williams does not view these observations as punitive. Over the years, Dr. Williams has conducted approximately 240 observations of teachers, and, generally, the employees are “on point” when being watched. Moreover, like Principal Rochelle, Dr. Williams views these observations as a snapshot of teacher performance while the SPE captures the year- long performance. In the report of the observation, Dr. Williams suggested that Respondent promote interactions with students, encourage more student participation, connect to prior student knowledge and interests, and present concepts at different levels of complexity, among other items. Norwood SPE—Professional Practice After the formal observation, Dr. Williams continued to conduct walkthroughs of Respondent’s class. He observed the same issues with refusing to use “grouping” and refusing to properly implement the discipline plan. Respondent never took advantage of the modeling techniques that were provided for him. He also was not implementing differentiated instruction. Dr. Williams himself held a professional development class on campus for the school discipline plan, which, instead of attending, Respondent attended a social studies class off campus. Instead of following the prescribed discipline plan, Respondent was trying to control the behavior of his students with treats. Similar to his time at Scott Lake, he refused to participate in field trips, staff gatherings, award assemblies, and student activity days. Respondent had lesson plans, but did not always follow them. He would spend an inordinate amount of time on vocabulary. He gave some tests, but would refuse to grade other tests. The pattern of his teaching was inconsistent, at best. On his SPE, Principal Williams rated Respondent as “effective” in five standards, “highly effective” in one, and as “developing/needs improvement” for the Learning Environment standard. Dr. Williams’ rating for Learning Environment was lower because Respondent failed to implement appropriate discipline strategies despite being told to do so. In eight years of being a principal, this was the first time he had ever given a teacher a “needs improvement” rating. He mostly gives his teachers combinations of “highly effective” and “effective,” if they do what they are supposed to do. Nevertheless, Dr. Williams testified he still went easy on Respondent because he was new to the school. In terms of his SPE professional practice points, Respondent scored in the bottom two percentile for second-grade teachers district-wide and was the worst rated second-grade teacher at Norwood. Instead of following the discipline plan, Respondent was using the emergency call button, writing SCMs, and writing to the superintendent to have ten students removed from his class. Another teacher at the school, Mr. W, had the exact same set of students as Respondent, only he taught them in the afternoon and not in the morning. He had none of the same behavior management issues Respondent had with this same group of children. Respondent claimed that Mr. W was able to manage the children better because, like the students, he was African-American. When asked how Respondent would have rated himself in these seven SPE standards, he would have given himself six “highly effectives” and one “effective.” He believes Principal Williams rated him lower than he should have as a result of retaliation against him for writing SCMs and because he complained about the size of his initial kindergarten class. This marked Respondent’s fourth claim of retaliation overall. Principal Williams credibly denied such retaliation at the hearing. Norwood VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 8.75 points-–the lowest possible score, again. He was one of 50 first-grade teachers district-wide who scored the bare minimum putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only six percent of his second-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from Norwood should not be considered because of his students’ behavioral issues. He also stated he did not have enough textbooks to send home with students. Much like at Scott Lake, he believes he was intentionally given bad students. This is peculiar for two reasons. First, Dr. Williams first tried to assign Respondent another class, but Respondent complained that one was too big. To accept this argument, the viewer would have to believe Dr. Williams knew Respondent would reject the larger class, and the principal had another one in the wings filled with “bad” students to make Respondent look ineffective. Second, Mr. W had none of the same problems Respondent did with this same group of students in the afternoon. To accept this contention, Principal Williams’ plan only “worked” on Respondent, since he was singled out for retaliation. This line of argument is nonsensical, at best. The 2015-2016 and 2016-2017 School Years at Aventura Waterways K-8 In looking for the right fit, Respondent was sent to Aventura Waterways K-8 (“AWK8”) for the 2015-2016 school year. He remained there for the 2016-2017 school year until he was dismissed from his employment in March 2017. As at his previous school assignments, the administrators at AWK8 tried to work with Respondent and the UTD to let him know their expectations prior to the formal observations. During these two school years Respondent was observed formally by Principal Luis Bello and Assistant Principal Ileana Robles on no less than nine occasions. In both years, during his initial observations, his performance was found to be deficient; and he was immediately placed on support dialogue and, eventually, 90-day performance probation. During these two probationary periods, he was provided assistance through improvement plans and completed all his improvement plan assignments. The goal was to help him remediate his deficiencies. The only change he ever implemented was switching from block to weekly lesson plans. Both his instructional delivery and the learning environment never improved. During these observations, Principal Bello and Assistant Principal Robles both observed the same repeated deficiencies, which they described in meticulous detail at the hearing. Summarizing their testimony, the issues concerning Respondent were: Pacing. Respondent spends too much time on issues and did not complete entire lesson plans. Questioning students. Respondent only uses basic, easy to answer questions; does not ask enough questions; or is dismissive of questions. Failing to properly explain concepts to students or to activate prior knowledge. Respondent fails to prompt students in order to generate interest in the subject matter and holds no conversations about the material in class. Not using challenging enough material. Respondent’s material was so basic that parents were concerned their children were getting grades they did not deserve and not learning grade- appropriate material. Principal Bello described Respondent’s instruction as “robotic” and lacking any semblance of “passion.” AWK8—Professional Practice On his SPE, Principal Bello rated Respondent as “effective” in two standards, and “unsatisfactory” in five standards. Principal Bello’s ratings were in line with the repeated deficiencies discussed above. He awarded Respondent “unsatisfactory” ratings because Respondent never remediated his deficiencies. Principal Bello credibly stands by his SPE Ratings as honest and admits to spending a great deal of time on them. In terms of his SPE professional practice points for 2015-2016, Respondent scored in the bottom (0) percentile for fifth-grade teachers at AWK8, all teachers at AWK8, fifth-grade teachers district-wide, and all teachers district-wide. When asked what Respondent would have rated himself in these seven standards, he would have given himself seven “highly effectives.” He believes Principal Bello rated him lower than he should have been rated, but could not say why. AWK8 VAM and overall SPE Rating Respondent’s State VAM score for learner progress points was 8.5 points-–the lowest possible score, for the third year in a row. He was the only one of 98 fifth-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only 32 percent of his fifth-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from AWK8 are not legitimate for a variety of reasons, none of which relate to his own shortcomings. Respondent’s excuses and the reasons not to credit those excuses are as follows: Respondent argues that his VAM cannot be counted against him because his afternoon class of fifth graders were ELL, and they spoke a variety of languages, including French, Russian, Hebrew, Portuguese, Spanish, and Turkish. His theory was that they performed poorly because of their poor grasp of the English language. For VAM scoring purposes, this excuse should not be credited because the VAM already takes into account their ELL status by comparing them only to other ELL students with identical demographics and prior test scores; and they are not expected to perform as well as non-ELL students. However, by Respondent’s own admission his afternoon ELL class was the best class he had had in ten years of teaching. He said they had emotional balance, presence of mind, and good parental engagement. He even explained how his ESOL certification assisted him in understanding how to teach them. According to him, by the end of the year, the students were at the level where they would be having conversations. Respondent also had another ESOL-certified teacher assist him for a portion of the year, which was a standard practice. Finally, ELL students, who are brand new to the country, are not calculated into the VAM because there are no prior year scores for which they can be compared “apples to apples.” Respondent himself testified that the lowest level ELL students did not get graded. This makes sense because Respondent testified that his afternoon ELL class was 31 students-–yet only 15 ELL students were factored into the data used to calculate his VAM score for 2015-2016. In sum, the grades of the lowest English language functioning students were not even held against him. Respondent next argues that the numbers of students in both his morning and afternoon classes at AWK8 exceeded class size restrictions. Respondent “believes” his morning class had 24 or so students, but only 18 after the special education students were removed. When the student data is examined, it appears that Respondent only had 15 non-ELL students factored into his VAM score. As for the afternoon ELL class, otherwise considered by him the best class he has ever had, Respondent claims there were 31 in that class. Even assuming Respondent’s numbers are accurate (and they do not seem to be, given the VAM data), these class sizes do not run afoul of class size restrictions and are commonplace at AWK8. The School District operates on averages for class size compliance and everyone teaching fifth grade at AWK8 had similar class sizes. None of those other teachers had the same problems Respondent did. Moreover, Respondent reported the alleged class size violations to the FDOE, and they did nothing about it. Respondent further argues that his morning group of students was once again a “bad” group that did not give him a “fair shot.” According to Respondent, he had a student who would sit in a garbage can and another that would tell him “F_ _k you” every day. He had behavior concerns with four to five students in the morning class. Eventually, the student who sat in the garbage can was removed from the class. Respondent then testified that these behavior issues were exacerbated by his absence from the classroom when he was performing his improvement plan activities. He now appears to be placing his behavior concerns on the administration for doing their job by trying to assist him and by remediating his deficiencies. Behavior management is integral to being a teacher. A teacher must not be allowed to escape his or her own responsibility for performance shortcomings by blaming it on the students. At every school where Respondent has taught, he has admittedly written a large number of SCMs, had behavior issues with his students, and believes he was purposely given “bad” students. The only common thread among these schools is Respondent. Nevertheless, he refuses to acknowledge that he might possibly be even a part of the problem and believes he has done nothing wrong. Respondent also blames his poor VAM on the fact that fundraising activities, book fairs, student activity days, and dances all detracted from instructional time at AWK8. This is the same excuse he used for his poor VAM at Norwood and holds no weight, since these are activities that all teachers at all schools must cope with as part of the instructional process. Respondent’s Termination by the School Board Respondent’s case was the first of its kind brought pursuant to section 1012.33(3)(b) (“3-year provision”), since this was the first time the School District had the requisite number of years’ data available. Of the thousands of teachers working for Miami-Dade County Public Schools, Respondent was part of a singular group of seven to nine teachers who fell into the three-year provision of the statute having the necessary combination of “needs improvement” or “unsatisfactory” final overall SPE Ratings. Of that handful of teachers, Respondent was the single worst. Respondent’s performance actually declined each year despite the assistance provided for and made available to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 15th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2018. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430 1450 Northeast Second Avenue Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board Suite 912 1450 Northeast Second Avenue Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether Petitioner returned Respondent to annual contract from continuing contract for good and sufficient reasons.
Findings Of Fact Through the 1992-93 school year, Respondent held a continuing contract with Petitioner. She has been the music teacher at Spring Creek Elementary School for 12 years. She has taught music for Petitioner for 27 years, including 26 years in elementary school. Prior to coming to Lee County, she taught for five years in Missouri and Illinois. Respondent earned a bachelor's degree in music education in 1962 from Murray State University. She has a master's degree in music education from Murray State as well. Respondent has had extensive training in music, especially chorus. She took a summer course at Westminster Choir College, where one of her instructors was Mary of Peter, Paul, and Mary. There is no question concerning Respondent's substantive knowledge of music. The factual issues in this case concern her ability to deliver this knowledge effectively to all of her students. Until three years ago, the principal of Spring Creek Elementary School was Thomas Halgrim, who was the first principal at Spring Creek. Mr. Halgrim and Respondent are on good terms. During Mr. Halgrim's ten-year tenure at Spring Creek, Respondent's performance was marginally acceptable. However, while Mr. Halgrim was principal at Spring Creek, he found it necessary to refer Respondent to the Intensive Assistance Program. This program helps teachers with major teaching problems. In Respondent's case, she needed additional work in the areas of facilitating student self-esteem and creating an environment in which students wanted to participate in music. Teachers typically remain in the program for 3-9 months; Respondent remained in the program for two school years. Patty van der Have succeeded Mr. Halgrim as principal of Spring Creek at the start of the 1991-92 school year. During the school year, she received complaints and expressions of concern from students, teachers, and parents regarding Respondent. The problems generally involved poor student morale in Respondent's classroom. Ms. van der Have discussed the possibility of the Intensive Assistance Program with the District personnel office, but they disfavored this option because Respondent had already been through the program. Instead, Ms. van der Have decided to begin the school year with observations in the hope that Respondent would make the recommended changes. On September 4, 1992, Kathleen Stephens (a/k/a Kathleen Rooker) observed Respondent. Ms. Stevens was an assistant principal. She saw that Respondent called each student individually to her desk to tell her his or her name, which she then wrote down. This task consumed 20 minutes. Afterward, Respondent reviewed class rules, which took the remaining ten minutes of the 30- minute class. Respondent was not responsible for checking attendance, but Respondent was expected to learn the names of the students. She taught 25-30 classes during the week. And the September 4 class was the first time that this class met. However, many of the children were returning from prior years, and Respondent wasted considerable time on an inefficient means of acquainting or reacquainting herself with her students. The written observation of September 4 targets two behaviors for further development: "begin work with students promptly [and] provide instructional objectives." On September 11, 1992, Ms. Stephens conducted another observation of one of Respondent's classes. The first 20 minutes of class were devoted to students individually coming up to Respondent's desk and getting a seat assignment. The last 10 minutes of class were spent passing out books and singing along with a record. Although there was little interaction between Respondent and the students, she responded several times to wrong answers by saying, "you're not looking," "pay closer attention," "you're not listening," or "your mind is elsewhere." The targeted behaviors for further development are the same as in the last observation, but add that Respondent should correct a student's mistake in a positive manner by providing cues and assistance. On September 28, Ms. Stephens conducted a third observation of Respondent. This time, Respondent was more effective in class. She had an appropriate lesson plan and followed it. However, she remained in her seat and used a pointer to direct students to items written on the chalkboard. Moving among the students can be an effective means of keeping the children on task. By late September, Ms. van der Have had received numerous complaints from parents, teachers, and students concerning Respondent. The complaints centered upon inadequate discipline among Respondent's students and a lack of focus of her music class. On October 16, 1992, Ms. van der Have observed Respondent. This was a class consisting of 12 students from the English Speakers of Other Languages (ESOL) program and four students from the Exceptional Student Education (ESE) program. The class consisted of a lecture by Respondent as to how to behave at a concert, followed by a display of posters of various musical instruments. There was little student-teacher interaction. The unsuitability of the lecture format was heightened by the classifications of the children. The ESOL students often have trouble with spoken English, and music can be an opportunity for them to learn without an emphasis on what is for them a foreign language. The ESE students were severely physically and mentally handicapped, and they too could have profited from another approach that that taken by Respondent. By the end of the class, three of the ESE students were asleep. Ms. van der Have's observation contains numerous recommendations. They include the need for student interaction initiated by asking the children questions and listening to their answers, circulating among the students, beginning each lesson with a short review, concluding each lesson with a short review, developing and following appropriate lesson plans for ESOL and ESE students, and increasing teacher awareness so as to deal with situations such as the three ESE students sleeping in the class. On October 23, 1992, Ms. Stephens observed Respondent, who again did not circulate among the students. When a child answered a question correctly, Respondent would call the child up to her desk and give him or her some stickers or passes, which tended to destroy any instructional momentum she could build up with the class. When a child answered a question incorrectly, Respondent would ignore the child rather than explore the area with the child. Again, Respondent did not follow her lesson plan. The observation form notes under targeted behaviors: Serious deficiencies continue to persist. INCREASE TEACHER MOBILITY AND CIRCULA MAINTAIN MOMENTUM. PRESENT MATERIAL CLEAR AND LIVELY MANNER, VARY INTENSITY, AND VOLUME OF VOICE, USE EYE CONTACT, SMILE, LIVELY BODY language and movement, accept positively student responses, probe for correct answer or amplify student response, use teacher withitness [i.e., awareness of all students in the classroom] to correct student behavior. The observation form requires Respondent to correct the ineffective teaching behaviors by November 13, 1992. On November 13, 1992, Charlotte Rafferty conducted the observation of Respondent. Ms. Rafferty is a principal of a fine arts magnet school in the district. She has taught music education in an elementary school elsewhere in Florida and in Texas. Ms. van der Have selected Ms. Rafferty for the observation because Ms. van der Have wanted someone with some musical background. Ms. Rafferty observed two classes of Respondent. Under "behaviors to maintain," Ms. Rafferty stated in the observation form, "nothing you are presently doing." The observation form describes in detail two classes in which the students were bored about the material being presented by Respondent. Ms. Rafferty concluded that Respondent needed to target the following behaviors for further development: Excitement, creativity, movement, proper use of instruments in classroom, challenging rhythm work for the children, interesting songs that children like, grade appropriate materials and instruments and positive interaction with the children. Ms. Rafferty listed 17 detailed recommended activities. These include adding some excitement to the class, having the district music coordinator observe and provide suggestions, use available instruments rather than just rhythm sticks, consider the needs of the children such as by including some Hispanic songs, desist from doing beat for 45 minutes as that "would bore anyone to death," use dance as a form of body movement to allow the students to feel beat, use "much more complex rhythm patterns" with fourth graders, do away with books for the entire class time, act like teaching is enjoyable, allow the children to interact more, and allow the children to use more improvisations, movement, and instruments to learn the feel of rhythm. Ms. Rafferty did not mince words in concluding the observation narrative. She stated: I would have a very difficult time holding up my head in front of these children if I gave them what you are giving them. In the best interest of the children I would hope that you would either make a drastic change immediately or retire from teaching. You are truly doing a dis-service to children. When you consider what these children say about their music experience, the poor teaching practices and poor presentations are a prostitution to the field that you a teaching. The ability to remain current takes commitment and dedication and the poor teaching that I saw is a deterrent to the advancement of music in our schools. Ms. Rafferty's allusion to what the children were saying is based on informal interviews that she conducted with them following class. On November 30, 1992, Ms. van der Have conducted a summative observation of Respondent. The previous observations were formative and intended to constitute part of a process by which Respondent and the assessor construct an assessment. The summative observation was the culmination of formative observations and represented a more comprehensive assessment of Respondent's performance. The problems that Ms. van der Have observed on November 30 were the same that had been observed previously. Respondent did not immediately begin teaching the material. Her failure to engage the children again led to misconduct. Before long, the majority of the students were disengaged and off task, even though Respondent was circulating to some degree through the class. On December 9, 1992, the district music coordinator, Jim Hinman, observed Respondent. He found that Respondent had trouble orienting the students toward classwork, maintaining instructional momentum, and keeping control of the classroom. She started class late and relied excessively on a lecture/response teaching strategy. Over time, the students' interest waned, and Respondent was reverting excessively to warnings about behavior, which further impeded any momentum. On February 18, 1993, Mr. Hinman conducted a second observation of Respondent. Although she did better in giving appropriate feedback, other problems continued from his previous observation and new problems emerged, such as spending classtime assigning seats. In general, Respondent was again unsuccessful in maintaining her instructional momentum and exciting the students. Respondent's teaching did not improve for the remainder of the school year. Her relations with administrators, some teachers, and even some students deteriorated. At one point, she confronted several children and demanded why they had complained about her. On March 23, 1993, Joseph Vetter, an assistant principal at Spring Creek, observed Respondent. He noted that Respondent was not circulating through the classroom, failed to use praise on the students, and failed to maintain effective control of the class. On March 25, 1993, Ms. van der Have gave Respondent a memorandum and performance assessment. The assessment finds that Respondent's effectiveness was, in all but one category, inconsistently practiced or unacceptable. The assessment notes that Respondent has consistently refused to meet with Ms. van der Have to discuss the areas of concern and suffers from a poor relationship with students and staff. The memorandum, a copy of which went to the superintendent, states that Ms. van der Have is recommending that Respondent be returned to annual contract for the 1993-94 school year. The memorandum adds that Respondent has one year to improve in all areas marked Unsatisfactory or Inconsistently practiced. I will be happy to schedule any assistance you may desire, such as visiting another classroom, having a teacher or Coordinator model an effective music lesson for you, providing video tapes of effective teachers teaching, selecting additional readings and/or videos for your use, discussing effective lesson plans, reviewing your discipline plan and so on. The memorandum concludes: I believe you need to reevaluate and implement the suggestions made by observers this year and reconsider accepting the assistance that you have continually refused this year. I need the students, parents and staff of Spring Creek Elementary School to receive an effective Music program. By letter dated March 30, 1993, and received by Respondent on the following day, the deputy superintendent notified Respondent that the superintendent would be recommending to the school board that Respondent be removed from continuing contract and placed on annual contract for the 1993-94 school year. The letter explains the basis for the action as inadequate performance and unwillingness to try to improve. On April 1, 1993, the superintendent filed a petition with the school board to return Respondent to annual contract for a continuing failure or refusal to use important instructional techniques. On April 13, the school board approved the action, effective July 1, 1993. By letter dated April 20, 1993, the superintendent informed Respondent of the action and advised her of her right to demand a hearing. On May 3, 1993, Respondent demanded a formal hearing. Petitioner proved good and sufficient reasons for returning Respondent to annual contract from continuing contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a final order reducing Respondent to annual contract for the 1993-94 school year. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 18, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1 (except last sentence): adopted or adopted in substance. 1 (last sentence): rejected as irrelevant. 2-4: adopted or adopted in substance. 5-10: rejected as irrelevant and subordinate. 11: adopted or adopted in substance. 12-20: rejected as irrelevant and subordinate. 21 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Mr. Halgrim did try to get Respondent to focus on problem areas. 21 (remainder): rejected as irrelevant and subordinate. The issue in this case is the effectiveness of Respondent for all of her students, not just those who are already motivated when they come to class and possess exceptional musical talents. 22-24: rejected as irrelevant and subordinate. 25: adopted or adopted in substance. 26: rejected as irrelevant and subordinate. 27: rejected as unsupported by the appropriate weight of the evidence except as to substantive knowledge of music. 28-30: rejected as irrelevant and subordinate. 31: rejected as unsupported by the appropriate weight of the evidence. 32-45: rejected as irrelevant, and subordinate, and unsupported by the appropriate weight of the evidence. 46: adopted or adopted in substance except as to the last clause, which is rejected as unsupported by the appropriate weight of the evidence. 47-48: rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Daniel H. Kunkel Kunkel & Hament Suite 785, 1800 Second St. Sarasota, FL 34236 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Office of the Superintendent 2055 Central Ave. Ft. Myers, FL 33901-3916 Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Karen Holcomb.
Findings Of Fact Respondent Karen Holcomb is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to section 1012.33, Florida Statutes.1/ Ms. Holcomb's complete employee file was not presented at the hearing. Performance evaluation documents that were entered into evidence show that she was an employee of the School Board for at least the following periods and in the following capacities: eighth grade math teacher at Eustis Middle School for the 2002-2003 and 2004-2005 school years; guidance counselor at Mount Dora Middle School for the 2005-2006 school year; math teacher at South Lake High School for the 2007-2008 school year; and art teacher at Eustis High for the 2009-2010 and 2010-2011 school years. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains six sections and 12 subsections. The subsections are further divided into sub-subsections.2/ The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I results in probationary status for the teachers, triggering the NEAT procedure and further evaluations. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance Form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. The record evidence indicates that Ms. Holcomb received a grade of 12 on her Appraisal I for the 2002-2003 school year, dated February 10, 2003, as a math teacher at Eustis Middle School and on her Appraisal I for the 2005-2006 school year, dated March 1, 2006, as a guidance counselor at Mt. Dora Middle School. On March 21, 2006, Ms. Holcomb received an Appraisal II for her failure to timely update a student's accommodation plan under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. On April 25, 2006, Ms. Holcomb received two Appraisal IIs. One cited Ms. Holcomb for a failure to report to work, stating that she did not inform administration or school site personnel that she would not be at work on April 7, 19, 20, and 21, 2006. The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement in notifying her worksite of her absences. In response, Ms. Holcomb submitted an affidavit from her husband stating that on the dates in question, Ms. Holcomb was either sick with a severe headache or in the hospital for cardiac problems. Ms. Holcomb's husband took responsibility for any failure to contact the proper school authorities regarding Ms. Holcomb's absences from work on those dates. The other April 25, 2006, Appraisal II stated that Ms. Holcomb was "not able to perform her job requirements due to excessive absences. The total number of days out as of April 21, 2006 is 31.5 days." The "recommended procedure for correction" was that Ms. Holcomb should "come to work on time and when required by work calendar designated by School Board and school site policy." The Appraisal II gave Ms. Holcomb until May 24, 2006, to show improvement. In response, Ms. Holcomb filed a memorandum explaining that her absences were due to legitimate illness and injury, including a 15-day hospitalization for broken ribs and collarbone, two days missed due to severe headaches, and four days missed due to hospitalization with heart attack symptoms. Ms. Holcomb suggested that the Appraisal II was part of an effort by school administrators "to undermine my current Professional Services Contract with Lake County Public Schools and destroy my reputation, due to an unknown agenda." As noted above, Ms. Holcomb began work as an art teacher at Eustis High during the 2009-2010 school year. On October 27, 2009, she received an Appraisal II from then- assistant principal Kristine Durias due to her classroom management. Ms. Durias explained the unacceptable aspects of Ms. Holcomb's classroom management as follows: I noted on several occasions that students in your classroom were not abiding by District, school and classroom procedures and were without correction from you as their teacher. On my last visit to your classroom on 10/22/09, 3 students had iPods out, 5 students were wandering around the classroom not engaged in the project and 1 student had their head down, all without regard from the teacher. Ms. Durias also provided Ms. Holcomb with a Prescription/Assistance Form setting forth the areas of performance that required improvement and providing resources to assist Ms. Holcomb in bringing her performance level up to the School Board's standards. These resources included page references to the IPPAS Handbook section on "Classroom Management," in-service classes on "Effective Classroom Management Strategies" and "Classroom Management for Secondary Teachers." The Prescription/Assistance Form also stated that Ms. Durias would contact the instructional coach to assist Ms. Holcomb and would ask another staff member to mentor Ms. Holcomb on school policies and procedures. The Prescription/Assistance Form provided that Ms. Holcomb's performance should show improvement "immediately," but also stated that her performance would be checked within three weeks. On November 17, 2009, from 12:40 p.m. until 1:20 p.m., Ms. Durias observed Ms. Holcomb and scored her on the Appraisal I form. Ms. Durias gave Ms. Holcomb a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Durias found Ms. Holcomb's performance deficient in two sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." She was graded as unsatisfactory in four of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" "Recognizes response/amplifies/gives corrective feedback;" and "Directs lesson." At a post-appraisal conference on December 2, 2009, Ms. Durias gave Ms. Holcomb a Prescription/Assistance Form. This form essentially directed Ms. Holcomb to continue with the recommendations set forth in the Prescription/Assistance Form issued on October 27, 2009. Because the November 17, 2009, evaluation resulted in a score that was below the minimum IPPAS requirement of 12, Ms. Durias designated it as an "Observation" rather than a formal Appraisal I that would immediately affect Ms. Holcomb's employment status.3/ In the Prescription/Assistance form, Ms. Durias informed Ms. Holcomb that another IPPAS appraisal would be conducted within three weeks. The appraisal was not conducted within the stated three weeks because Ms. Holcomb was out on sick leave from January 21, 2010, through April 20, 2010. On April 23, 2010, two days after Ms. Holcomb returned to work from her lengthy absence, an Appraisal I of her performance was conducted by assistant principal Marta Ramirez, who joined the staff at Eustis High School in March 2010. Ms. Ramirez testified that it is not at all unusual to evaluate a teacher who has been out of work for a long period of time. Teachers are frequently out on maternity leave or due to illness. Ms. Ramirez stated that the School Board expects every teacher to perform at the level required to pass an IPPAS appraisal whenever she comes to teach, whether it is the first day of school or the first day back from an extended leave. Ms. Ramirez observed Ms. Holcomb from 12:44 p.m. until 1:44 p.m. and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 8 on the appraisal, rating her unsatisfactory in four of the 12 subsections. The section "Teaching Procedures" contains four subsections, one of which is "Displays skills in making assignments." Ms. Ramirez found Ms. Holcomb's performance deficient in that subsection due to an unsatisfactory score in the sub-subsection titled "Gives clear and explicit directions." The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found Ms. Holcomb's performance deficient in three of the four sub-subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in both subsections: "Demonstrates knowledge and understanding of the subject matter" and "Communicates and presents subject matter in a manner that enables students to learn." As to the first subsection, Ms. Holcomb was graded as unsatisfactory in one of two sub-subsections, "Sequence is logical." As to the second subsection, she was graded as unsatisfactory in three of seven sub-subsections: "Treats concepts/cause and effect/or states and applies rules;" "Uses questioning techniques;" and "Directs lesson." At the hearing, Ms. Ramirez testified as to her observations of Ms. Holcomb's teaching methods. Ms. Ramirez stated that there is a standard procedure for ensuring a prompt start to the class. Before the students come into the classroom, the teacher writes a "bell ringer" on the blackboard, i.e., an activity that the students are expected to work on while the teacher takes attendance. Ms. Holcomb had no bell ringer activity prepared for her students, who sat down at their tables with nothing to do. The students talked among themselves, a distraction that lengthened the process of taking attendance to six minutes. Ms. Ramirez found Ms. Holcomb's performance deficient in the areas of starting class promptly and being on task. Ms. Ramirez stated that another standard classroom procedure is the teacher's stating the objective of the day's lesson. Ms. Holcomb stated no objective either orally or in writing. Because there was no stated objective, the lesson did not proceed in a meaningful, orderly fashion. Ms. Holcomb seemed to jump from one thing to another. Some students were confused, looking to Ms. Holcomb and trying to figure out what they were supposed to do. Ms. Ramirez noted that the lack of a set procedure or guidance from the teacher naturally leads the students to lose focus and begin talking among themselves. Ms. Holcomb's students began chatting, which led Ms. Holcomb to attempt disciplinary measures. She began by saying "cut." Ms. Ramirez was not sure what "cut" meant, but surmised that it was Ms. Holcomb's instruction to the students to stop talking. The instruction had no effect on the students. Ms. Ramirez testified that there was still some confusion 20 minutes into the class period. The students still did not understand the assignment. They were blurting out questions such as, "What are we doing?" and "Is this for a grade?" They were asking each other what they were supposed to be doing. At some length, they understood the assignment and began work, though an undercurrent of confusion remained. Ms. Ramirez attributed this undercurrent to Ms. Holcomb's failure to state an objective or purpose to the assignment. Ms. Ramirez was also critical of Ms. Holcomb's interactions with the students. Ms. Ramirez stated that accepted practice is for the teacher to state a single question, wait for a moment, call on a student, and affirm the correct answer. If the answer is incorrect, the teacher provides feedback that steers the class toward the correct answer. Ms. Ramirez testified that Ms. Holcomb allowed the students to shout out answers in a chaotic manner. Ms. Ramirez stated that the class period lasted for 90 minutes, but that she left after an hour because the class "didn't seem to be headed any direction, just headed downhill." The students were not on task and were not learning anything. As a result of the substandard Appraisal I score, Ms. Ramirez completed a Prescription/Assistance Form that she gave to Ms. Holcomb at a post-observation conference on April 29, 2010. Eight areas for improvement were listed, corresponding to the eight sub-subsections for which Ms. Holcomb received unsatisfactory scores on the April 23 Appraisal I. Eight pages of the IPPAS Handbook were attached as reference resources to assist Ms. Holcomb to improve her performance. The Prescription/Assistance Form also provided that an instructional coach would assist Ms. Holcomb in applying best teaching practices and that she could obtain in-service instruction in classroom management. The form also "encouraged" Ms. Holcomb to take staff development workshops provided by Lake County. Also on April 29, 2010, Eustis High principal Al Larry issued a memorandum to Ms. Holcomb advising her of performance deficiencies in the areas of "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter," as reflected in the April 23 Appraisal I. Mr. Larry noted that as to the latter two areas, Ms. Holcomb had shown deficiencies in the observation of November 17, 2009, and that those deficiencies had not been corrected. Mr. Larry's memorandum closed as follows: "Based on the performance deficiencies, I am placing you on performance probation for 90-calendar days beginning on Monday, August 23, 2010. The 90-calendar days will end on Monday, November 22, 2010." By letter dated May 7, 2010, Superintendent of Schools Susan Moxley warned Ms. Holcomb of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Ms. Ramirez testified that she contacted Claude Pennacchia, a former principal who acts as instructional coach for eight schools. Mr. Pinnachia agreed to contact Ms. Holcomb and set up a meeting. Because she called Mr. Pennacchia near the end of the school year, Ms. Ramirez contacted him again at the start of the new school year in August to remind him of the need to provide training to Ms. Holcomb. Mr. Pennacchia told her that he had tried to arrange a meeting with Ms. Holcomb, but they could not agree on a time. Ms. Ramirez testified that to the best of her knowledge Ms. Holcomb never made herself available to meet with Mr. Pennacchia. Ms. Ramirez was not aware that Ms. Holcomb ever did anything that was recommended by the April 29, 2010, Prescription/Assistance Form. Ms. Ramirez testified that Ms. Holcomb was in school for the first two weeks of the 2010-2011 school year, then became ill and was out until sometime in November 2010. The follow-up observation was conducted by Ms. Ramirez on December 1, 2010, after the running of the 90-day probation period. Ms. Ramirez observed Ms. Holcomb from 10:23 a.m. until 11:00 a.m.4/ and scored her on the Appraisal I form. Ms. Ramirez gave Ms. Holcomb a score of 7 on the appraisal, rating her unsatisfactory in five of the 12 subsections. The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which student are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Ramirez found Ms. Holcomb's performance deficient in two of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably" and "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities." Under the section "Presentation and Knowledge of Subject Matter," Ms. Holcomb was rated unsatisfactory in one subsection, "Communicates and presents subject matter in a manner that enables students to learn." Within that subsection, Ms. Holcomb was graded as unsatisfactory in two of seven sub- subsections: "Uses questioning techniques" and "Recognizes response/ amplifies/ gives corrective feedback." Under the section "Assessment Techniques," Ms. Holcomb was rated unsatisfactory in the sole subsection, "Uses assessment strategies to assist in the continuous development of the student." Within that subsection, Ms. Holcomb was graded as unsatisfactory in one of four sub-subsections, "Checks student progress based on the performance standards required of students in Florida public schools, analyses data, including annual learning gains at the classroom and school levels, and makes appropriate adjustments." Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in one of three subsections, "Engages in continuous professional improvement for self and school." This subsection contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." At the hearing, Ms. Ramirez explained that the sections of the Appraisal I document being scrutinized during the observation are "Teaching Procedures," "Classroom Management," and "Presentation and Knowledge of Subject Matter." The sections titled "Planning," "Assessment Techniques," and "Personal Characteristics and Professional Responsibilities" are covered in the post-observation conference with the teacher, at which time the teacher shares her portfolio or other evidence of compliance with IPPAS standards with the evaluator. Ms. Ramirez testified that on this occasion Ms. Holcomb had an assignment on the board as the students entered, but that the students still appeared confused. They did not seem to know what they were supposed to be doing. The students continued to talk among themselves even when Ms. Holcomb began a review. Ms. Ramirez noted that Ms. Holcomb was still using "cut" to end the students' conversations, and that it was still being ignored. Ms. Holcomb had posted rules of conduct in her classroom that included raising one's hand and being called on by the teacher before asking a question. Ms. Ramirez testified that this rule was ignored by the students and Ms. Holcomb. The students would blurt out questions, and Ms. Holcomb would answer them. Ms. Ramirez found it highly problematic that Ms. Holcomb was not even attempting to enforce her own rule. Ms. Ramirez noted that students walked into class several minutes after the bell and Ms. Holcomb took no notice. Students walked into the class with food and started eating. Other students simply stood up and walked out of class. Ms. Holcomb did not address any of these misbehaviors. Ms. Ramirez testified that before leaving the classroom, a student is supposed to ask permission, get a pass, and sign out. Ms. Holcomb seemed unaware that students were walking in and out of the classroom while she taught the lesson. Ms. Holcomb's failure to observe the hall pass protocol created a dangerous situation because there was no accountability for these children. They were without adult supervision outside the classroom and could go anywhere or do anything. During cross-examination, Ms. Ramirez was questioned regarding the size and configuration of Ms. Holcomb's classroom in connection with the fact that Ms. Holcomb was using a wheelchair during this period. Counsel was attempting to demonstrate that at least some of the discipline problems were not Ms. Holcomb's fault because the layout of her classroom ensured that she was unable to see all of her students from her position in the wheelchair. Ms. Ramirez acknowledged that Ms. Holcomb's art class was large, between 35 and 40 students, and that Ms. Holcomb had to navigate the room in a wheelchair. However, Ms. Ramirez also testified that being in a wheelchair did not absolve Ms. Holcomb of her responsibility for the safety of the children in her classroom. More than one person in the Eustis High administration had urged Ms. Holcomb to rearrange the tables in her classroom to give herself a clear view of all the students. Ms. Holcomb had been advised to look at the classroom of the art teacher next door for ideas on how to arrange the tables. For some reason, Ms. Holcomb declined to change the configuration of the tables in a way that would curtail the students' ability to essentially hide from her. Ms. Ramirez conducted a post-observation conference with Ms. Holcomb on December 6, 2010. Prior to the conference, Ms. Ramirez spoke to Mr. Larry about the results of the Appraisal I. She told Mr. Larry that Ms. Holcomb had requested that her union representative be present at the conference and that "it doesn't look good" for Ms. Holcomb because she received unsatisfactory scores in two of the same subsections she had failed on the April 23, 2010, Appraisal I. In light of this information, Mr. Larry decided that he would attend the conference as well. On December 7, 2010, Ms. Holcomb submitted written comments that provided as follows, in relevant part: To begin, this is the culmination of Mr. Larry's hostile attitude toward my... appointment to Eustis High School.... Mr. Larry has not spoken one kind word to me since the appointment in August of 2009. Since my appointment to Eustis High School, I have had to work in a hostile environment where Mr. Larry has been using the Florida Statute 1012.34 assessment procedures as a weapon to fire me. Using an assessment procedure where nothing less than perfect is failing, Mr. Larry used his assistant principals to do his bidding where acceptable or unacceptable grades are completely subjective. In other words, the assessment is biased where any teacher that the principal does not like has no chance of passing and there is no supervisory protection or due process afforded to the teacher. . . (Emphasis in original.) Ms. Holcomb also alleged that Mr. Larry "violated the intent of the ninety days rule" for performance probation when he did not extend the time for improvement of her deficiencies in light of her eight-week stay in the hospital. Ms. Holcomb also alleged that Mr. Larry refused her request to move to an open guidance counselor position that would not require her to show classroom management skills. There was no record evidence that Mr. Larry held any grudge against Ms. Holcomb.5/ Ms. Ramirez denied receiving any instruction or direction from Mr. Larry as to her evaluations of Ms. Holcomb's performance as a teacher. There was no record evidence that Ms. Holcomb applied for a guidance counselor position during the period in question. By letter dated December 7, 2010, Mr. Larry informed Superintendent Moxley that Ms. Holcomb had failed to correct her performance deficiencies, that Mr. Larry did not believe Ms. Holcomb capable of correcting those deficiencies, and recommending that Ms. Holcomb's employment be terminated. In a letter to Ms. Holcomb dated December 10, 2010, Superintendent Moxley wrote as follows: Pursuant to Florida Statute 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Please be advised that I will recommend to the Board that your employment be terminated as of January 10, 2011. You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have. Ms. Holcomb filed a grievance pursuant to School Board Policy 6.35. In light of that grievance, Superintendent Moxley rescinded Ms. Holcomb's termination until such time as Ms. Holcomb could receive a second Appraisal I observation by an administrator from outside Eustis High. June Dalton, the principal of Tavares High School, was selected by chief of curriculum Nancy Velez to conduct the observation. Ms. Dalton began teaching in Lake County in 1978 as a physical education teacher. After teaching for 13 years, Ms. Dalton became an administrator. She has served 14 years as a principal, including eight years at the high school level. Ms. Dalton has been trained in use of the IPPAS Handbook and sat on a committee charged with updating the IPPAS program. She has trained administrators on the IPPAS system. At the time she accepted the assignment from Ms. Velez, Ms. Dalton had never met Ms. Holcomb. Ms Dalton met Ms. Holcomb for the first time at the pre-observation conference on January 11, 2011. They discussed the appraisal form, including every aspect of the observation and the areas on which Ms. Dalton would focus. Ms. Dalton assured Ms. Holcomb that she was there to help her meet the minimum standards in her appraisal. Ms. Dalton testified that Ms. Holcomb had some concerns about the layout of her classroom and asked for her ideas. Ms. Holcomb told Ms. Dalton that she had trouble maintaining order with some of the students in her classroom. Ms. Dalton testified that Ms. Holcomb's classroom was long and narrow, with tables arranged in such a way that at times some students were facing away from the teacher. Ms. Dalton suggested setting the tables end to end along the length of the room, so that Ms. Holcomb could lecture in front and be seen by all of the students. Ms. Dalton stated that when she came to the room for the observation, the tables had not been moved.6/ Ms. Dalton asked to see Ms. Holcomb's individual personal development plan ("IPDP"), a document that all teachers are required to complete that identifies individual goals and objectives designed to promote their personal growth. The teacher is required to state objectives that are feasible and primarily under her control, are measureable and/or observable, and are agreed to and signed by the teacher and her supervisor. Ms. Dalton stated that it is her practice at Tavares High School to review her teachers' IPDPs before their observations. Ms. Holcomb told Ms. Dalton that she had turned in her IPDP to Ms. Ramirez, but that she could not find her copy of the signed document. Ms. Holcomb printed a copy of the IPDP to show to Ms. Dalton. After reviewing the IPDP, Ms. Dalton concluded that it was not a workable plan as written because there was no way that Ms. Holcomb could document the student progress that she intended to bring about. Ms. Dalton gave Ms. Holcomb some suggestions for making her IPDP into an acceptable document. Ms. Holcomb agreed that she would rewrite the IPDP and have it ready for Ms. Dalton at the time of the observation. However, on the day of the observation, Ms. Holcomb told Ms. Dalton that she had not had time to work on it. Through his questioning of Ms. Ramirez, counsel for Ms. Holcomb insinuated that that Ms. Holcomb had turned in an IPDP to Ms. Ramirez in October 2010, but that Ms. Ramirez had lost the IPDP by the time she performed her Appraisal I on December 1, 2010. Ms. Ramirez testified that the first time she ever saw an IPDP from Ms. Holcomb was at the December 6 post- observation conference. The document was handwritten and was missing significant information. Ms. Holcomb had been notified that that the IPDP was part of her Appraisal I and that she needed to bring it to her post-observation conference. Ms. Ramirez gave her an unsatisfactory mark for the incomplete IPDP. The testimony of Ms. Dalton and Ms. Ramirez is credited as to the IPDP. It is apparent that Ms. Holcomb created a typed IPDP at some point between December 6, 2010, and January 11, 2011, but that she never gave it to her supervisor at Eustis High for review and approval. Ms. Holcomb tried to make Ms. Dalton believe that the IPDP she printed at the pre- observation conference on January 11 was an approved, finished product when in fact it was, at best, a draft IPDP. After they finished with the pre-observation conference, Ms. Dalton and Ms. Holcomb discussed dates for the observation. Ms. Holcomb did not want the observation to take place until after semester exams. Ms. Dalton agreed that little would be gained from having her observe Ms. Holcomb as she proctored an exam. They agreed on a date, but Ms. Holcomb was out sick on the scheduled date. After a few reschedulings, the observation took place on February 17, 2011. Ms. Dalton's observation lasted from the time the bell rang at 12:44 p.m. until class was dismissed at 2:14 p.m. Ms. Dalton was in the classroom several minutes before the opening bell. On the Appraisal I form, Ms. Dalton gave Ms. Holcomb a score of 6, rating her unsatisfactory in six of the 12 subsections. The section "Planning" contains a single subsection titled "Plans, implements, and evaluates instruction," for which Ms. Holcomb was given an unsatisfactory score. Within that subsection, Ms. Holcomb was given an unsatisfactory score on one of the four sub-subsections, titled "Develops short and long term personal and professional goals related to instruction as evidenced by an Individual Professional Development Plan." The section "Teaching Procedures" contains four subsections, in two of which Ms. Dalton graded Ms. Holcomb's performance as unsatisfactory. Under the subsection titled "Uses instructional materials effectively," Ms. Holcomb was graded unsatisfactory in the sub-subsection titled "Uses technology in the teaching and learning process." Under the subsection titled "Recognizes and provides for individual differences," Ms. Holcomb was given an unsatisfactory score in the sub-subsection titled "Attends to student needs." The section "Classroom Management" contains a single subsection titled "Creates and maintains positive environments in which students are actively engaged in learning," for which Ms. Holcomb was given an unsatisfactory score. Ms. Dalton found Ms. Holcomb's performance deficient in three of the four sub- subsections: "Applies the established rules and standards for behaviors consistently and equitably," "Uses learning time effectively, maintains instructional momentum, and makes effective use of time for administrative and organizational activities," and "Provides conscious modeling to modify attitudes and behaviors." Under the section "Personal Characteristics and Professional Responsibilities," Ms. Holcomb was graded as unsatisfactory in two of the three subsections. The first subsection, "Engages in continuous professional improvement for self and school," contained four sub-subsections, in two of which Ms. Holcomb's performance was graded as unsatisfactory: "Demonstrates effective communication in order to establish and maintain a positive, collaborative relationship with students' families to increase student achievement" and "Presents evidence that the Individual Professional Development Plan is in progress." The second subsection was titled "Complies with Board rules, policies, contract provisions, and published school-site rules and policies consistent with Board rules and contract provisions" and contained no sub-subsections. Ms. Dalton testified that Ms. Holcomb did not have a bell ringer activity to keep the students engaged while she took attendance. Ms. Holcomb frequently had to stop taking attendance to admonish talkative students. Ms. Dalton stated that Ms. Holcomb was still taking attendance at 12:53, nine minutes after the opening bell. She started entering the attendance into her computer at 12:58, and was not finished with marking attendance until 1:01, seventeen minutes into the class period. Ms. Dalton found it apparent from the start that there was no class routine. The students had to be told what to do at every step of the way. At the end of attendance, Ms. Holcomb explained a journal assignment she had written on the board, but most of the students talked all the way through her explanation and some did not perform the assignment at all. There were no consequences for their misbehavior. Ms. Holcomb held up samples of a project the class had begun in a previous session and was continuing to work on. The students in the middle of the room had a good view of the samples, but the students at the far end of the room had a hard time seeing. Ms. Dalton noted that some students were working on the project and some were not. Some were talking. Students at two different tables were texting or playing with their cell phones. Ms. Dalton stated that Ms. Holcomb frequently stopped to announce that she was waiting for the class to be quiet. She also used a technique called "harsh desist," singling out a student to threaten with removal from class. One such student replied, "Good, get me out of here." Ms. Holcomb called out to Table Five that she was taking away five points for talking, though not everyone at the table was talking. Ms. Dalton heard one of the students at the table say, "Well, it doesn't matter, she doesn't know our names anyway." Ms. Dalton took this statement as a sign that Ms. Holcomb's method of correcting misbehavior was not effective. Ms. Dalton noticed that Ms. Holcomb did not have current class rosters. The rosters and seating charts in her folder were from the previous semester. Ms. Holcomb did not know the names of the students at Table Five and therefore was unable to deduct points from them. Ms. Holcomb told another table that she was awarding it bonus points, but Ms. Dalton wondered how Ms. Holcomb could do that when she did not know the students' names. Ms. Dalton noted that Ms. Holcomb's voice was loud to the point of yelling. Ms. Dalton believed that if Ms. Holcomb would use a quieter voice, then the students who were not being intentionally disruptive might quiet down. Ms. Dalton testified that in her experience students will stop talking if they cannot hear what the teacher is saying. If they can hear the teacher over their own quiet conversation, then they will go on talking. Ms. Dalton stated that Ms. Holcomb had some technology in the classroom but for some reason declined to use it. Ms. Holcomb had a document camera that could have been used to show a document to the entire class. All of the components to the camera appeared to be present, but Ms. Holcomb failed to use it. Ms. Dalton observed three students at one table who did nothing for 35 minutes but draw on their arms, talk, and play with their phones. Finally, Ms. Holcomb addressed two of the students. However, they continued to draw on their arms and not work even when Ms. Holcomb sat next to one of them. Ms. Holcomb gave these students no further corrective feedback. Ms. Holcomb attempted to gain control of the class by threatening detention for the next Tuesday. She stated that if a student receiving a detention became argumentative or disrespectful, she would escalate the discipline to a referral. Ms. Dalton saw Ms. Holcomb's threats as empty because the promised detentions were five days in the future. Ms. Dalton also noted that Ms. Holcomb had not yet contacted the parents of any of the disruptive students. Ms. Dalton testified that Ms. Holcomb did some things well. She worked with some students individually. She gave them feedback. Overall, Ms. Dalton saw a class in which some students were trying to do their work, and in which many other students were talkative, did not seem to care about their work, and did not fear any consequences. Ms. Holcomb's method of dealing with the discipline problem was to make empty threats. Ms. Dalton acknowledged that the score of six was "a bad score." The observation gave her concerns about Ms. Holcomb's ability to teach in a classroom. Ms. Dalton stated, "It was a difficult class to watch." The students who wanted to learn were not getting what they needed because the teacher was spending so much time ineffectively trying to get minor misbehaviors under control. Ms. Dalton testified that the post-observation conference, held on February 18, 2011, was uneventful. She asked Ms. Holcomb whether she had called the parents of the students who were disrupting her class. Ms. Holcomb stated that she intended to commence calling them that evening. From Ms. Holcomb's reply, Ms. Dalton concluded that Ms. Holcomb was not taking charge or involving the parents in getting the misbehaviors under control. On February 22, 2011, Ms. Holcomb submitted her written comments on the evaluation. She again decried the subjectivity of the evaluation criteria and the fact that a perfect score is required for a satisfactory appraisal. She alleged that Eustis High and the School Board were "using the Florida Statute 1012.34 as a tool to fire me because I am a handicapped teacher in a wheelchair." Ms. Holcomb stated that she had turned in her IPDP more than once but that her administrator never signed it. She stated that the document camera did not work properly. She argued that the school had a faulty system for removing disruptive students and that her phone calls to parents had not improved the students' behavior. Ms. Holcomb argued that she could not properly manage the classroom when there were students in the room who did not want to be there but whom Mr. Larry would not permanently remove from her class. Ms. Dalton testified that during the post-observation conference, Ms. Holcomb said nothing about the document camera not working. Ms. Dalton saw only one student who expressed a desire to be out of Ms. Holcomb's classroom. She reiterated her opinion that the disciplinary problem in Ms. Holcomb's classroom was minor but that Ms. Holcomb escalated the problem through her mishandling of the disruptive students. Ms. Dalton saw nothing in Ms. Holcomb's comments that changed her mind about the scores she gave Ms. Holcomb on the Appraisal I. In a letter to Ms. Holcomb dated March 14, 2011, Superintendent Moxley wrote as follows: Pursuant to Florida Statutes 1012.33 and 1012.34, I am writing to inform you that you have failed to correct your performance deficiencies as identified by your principal. Due to the global nature of the identified performance deficiencies, you have demonstrated incompetence and the lack of the qualifications needed to be an effective teacher. Please be advised that I will recommend to the Board that your employment be terminated as of March 28, 2011. You are entitled, if you so choose, to a due process hearing pursuant to the procedures contained in Florida Statute 1012.34(3)(d)2.b. To exercise your due process rights, you must request a hearing in writing within fifteen (15) days of the date you receive this letter. Your principal will meet with you in the near future to answer any questions you may have. Ms. Holcomb timely requested a due process hearing by letter dated March 18, 2011. On the same date, Superintendent Moxley notified Ms. Holcomb in writing that she would recommend that Ms. Holcomb be placed on unpaid suspension at the March 28, 2011, School Board meeting and that the suspension last until the conclusion of the due process proceeding. The first duty of school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. The evidence established that the process followed by School Board personnel in evaluating Ms. Holcomb's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA.7/ The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. At the outset of the final hearing, the School Board announced that it intended to proceed exclusively pursuant to the "just cause" provision of section 1012.33. Therefore, there is no need for extensive findings as to whether the School Board met all of the substantive criteria for teacher dismissal set forth in section 1012.34(3).8/ The issue is whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1). On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Holcomb for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 14th day of March, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011.
The Issue Whether Respondent's teaching certificate should be suspended or revoked, or whether other appropriate action should be taken for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code.
Findings Of Fact The Respondent, Jimmy L. Parker, holds Florida Teaching Certificate #165142, Graduate, Rank 3, valid through June 30, 1901, covering the area of music education. Respondent has been employed in the public schools of Polk County at Winter Haven High School as the band director. A petition for the revocation of teaching certificate was filed by the Chairman of the Petitioner Council on April 6, 1979. Homer K. Addair, the Superintendent of Schools, by letter dated May 21, 1979, advised Respondent Parker that he was "charged with falsifying an accident report and subsequently wrongfully collecting workmen's compensation funds, i.e. immorality," and that he was suspended from his employment effective May 23, 1979. Respondent has not been employed since that date by the School Board of Polk County, Florida. Respondent Parker filed a response through his attorney on May 1, 1979, and the pleadings were filed with the Division of Administrative Hearings with a request that a hearing officer be assigned. After the hearing was called to order, a stipulation as to some facts was filed by the parties: On or about May 8, 1975, while returning home during the evening hours from a band meeting at the school and driving a 1975 Ford van leased to the Board of Public Instruction of Polk County, Florida, Respondent Parker pulled to the side of the road at a location approximately one house from his home at the signal of James A. Partain, an employee of the Board of Public Instruction of Polk County, Florida as a coach of Winter Haven High School. Partain got into the van with Respondent, wherein a discussion ensued concerning an illicit relationship occurring between Respondent and Partain's wife, also an employee of the Board of Public Instruction of Polk County. A fight ensued in the van wherein Respondent suffered physical injuries. Respondent Parker drove himself home and told his sick wife that two black people had beaten him at the school. Respondent's wife called a neighbor, who came to Respondent's home and called the police. Respondent told the police that two black boys had beaten him. On the morning of May 9, 1975, Respondent Parker reported to his supervisor, Principal Herman Lofton, that be was attacked by two youths while on the school grounds on official school business and beaten badly. The beating incident was investigated by the local police and later by William J. Duncan, Deputy Superintendent of Schools. On June 3, 1975, Respondent Parker submitted a "claim of instructional personnel for illness in line of duty compensation" form to the principal, Herman Lofton. This claim stated that Respondent was beaten while on official school business with the band on the school grounds by two youths. Ultimately, the claim was approved, and Respondent received workmen's compensation payments of approximately $3,400.00 as a result of said claim. The morning after the incident of the beating and the call to the police station, the headlines of an article in the Winter Haven newspaper noted that two black youths had beaten the band director, the Respondent, the night before. From that time to date of hearing there have been news items about the episode in the paper and on the radio. William J. Duncan, Deputy Superintendent of Schools, talked to the police chief about the fighting incident. He received telephone calls from the black community informing him that some black people did not believe black youths were involved and wanted the investigation to continue. There was controversy within the black group, some believing Respondent Parker had not told the truth and some believing he had. Later, a dispute arose between two school employees as a result of the incident which created a disturbance in the lunchroom. The incident was reported to Duncan. Subsequently, the investigation was dropped by the police and the school authorities for the good of the school and the community. Sometime later, however, Homer Addair, Superintendent of Schools, requested Duncan to make an investigation to determine whether students had been involved in the incident, whether the altercation had actually taken place on the school grounds, and whether records had been falsified. Duncan said that the investigation had been dropped to keep the peace between the black and the white communities and to further the interests of the school band. He had heard the incident mentioned occasionally from the time it occurred by people in the community, band members and Band Boosters, and read short reports about it in the newspapers. Herman Lofton, Principal of Winter Haven High School, had been called by the police and questioned about the incident. Shortly thereafter, he received a written report from Respondent. He signed a county form for instructional personnel for illness and received an employee's accident and report claim. Lofton processed the claim in due course by sending the form to the county office. Subsequently, Lofton talked to the two employees, one black and one white, who had been creating a disturbance in the lunchroom, about the incident. Lofton has heard others mention the incident from time to time and occasionally read a short account regarding it in the newspaper. Homer Addair, Superintendent of Schools, learned of the incident from the news media, from members of his staff, and from the community. He instructed Duncan, his deputy superintendent, to investigate. It was Addair's opinion that the Respondent is a good band director and is supported by the band students and Band Boosters, but that because of the altercation and falsification of records his effectiveness as a teacher in the school system as a whole has diminished. It is Addair's opinion that the conduct of Respondent Parker sets a bad example for the students. His opinion is based upon the conduct that led to the altercation and to Respondent's falsification of the workmen's compensation claim. James R. Partain, Coach at Winter Haven High School, substantiated the facts relating to the fighting incident but stated he did not want Respondent Parker to lose his job and was sorry for his involvement in the fight. He said the fight began after he threatened to tell Respondent's wife about the affair, and that Respondent threatened him if he did tell her. Partain did not realize he had beaten Respondent to such an extent and later apologized to him. James Ernest Reese, Assistant Band Director, stated that Respondent Parker is a hard-working and effective band director, and that it is his opinion that the altercation between the Respondent and Partain did not cause Respondent to lose his effectiveness as a teacher. When asked the question whether he felt "the receipt of money from the false claim as an act of morality for an educator, is that act a moral act or an immoral act?", he reluctantly stated, "I suppose it could be classified as an immoral act." Roy V. Wood, a retired supervisor of music in Polk County schools and an investigator for the Petitioner Council, testified that the people of Polk County knew of the altercation and of the allegations of falsified reports, and that they still wanted Respondent as a band director. Reverend D. Dewey Wise, Pastor of the First Church of the Nazarene, knew of the altercation and testified he could see no difference in the effectiveness of the Respondent as a teacher now as compared to before the subject problems. He testified that the majority of the people in the community support the Respondent. He also stated that falsification is not a good example and "anytime we commit wrong, it would be an immoral act." Respondent Parker stated that he lied to his wife and to the police about the beating incident, stating that two black youths had beaten him, because he did not want his wife to know that he had had an illicit affair with the wife of another teacher in the school system. Respondent stated that he also did not want to embarrass the school, and that he was afraid of his paramour's husband, Partain. There was no explanation from Respondent as to why he falsely stated the incident took place on the school grounds while he was on official school business, whereas in fact the incident took place only a short distance from his home and inside the school van. Respondent Parker filled out several forms after the first form for the workmen's compensation claim, and each time he made false statements as to whom he had been beaten by and where the incident had taken place. Respondent Parker has the reputation of being an excellent band director and has brought honor to the school through his talent in directing the school band. His employment evaluations have been good. The band students and the parents and friends who comprise the Band Boosters admire his ability. The band students and many people in the community would not like to lose his services in the music department. Both parties submitted proposed findings of fact, memoranda of law, and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the teaching certificate of the Respondent, Jimmy L. Parker, be revoked for a period of three (3) years. DONE and ORDERED this 8th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301 Lee S. Damsker, Esquire 2919 First Florida Tower Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA IN RE: JIMMY L. PARKER DOAH CASE NO. 79-1026 /
Findings Of Fact The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part: The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule. Gadsden County School Board Rule 4.113, provides in pertinent part: TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . .. * * * (2) In order to meet the staffing needs of the district, it is occasionally necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part: The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . .. * * * In making transfers, the Board will first review requests of volunteers. . . .. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.) The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/ The situation was brought to the attention of the Superintendent and his staff. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs. RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1994.
The Issue Should discipline be imposed on Respondent's Florida Educator's Certificate No. 763156, based upon allegations in the Administrative Complaint, Case No. 045-2762-F, before the State of Florida, Education Practices Commission?
Findings Of Fact Stipulated Facts Respondent holds Florida Educator's Certificate No. 763156, covering the area of Music, Grades K through 12, valid through June 30, 2008. Additional Facts At times relevant to the case Respondent was an employee of the Duval County School District (the District). He was assigned to Fletcher High School as band director. His principal was Helene Kirkpatrick. On August 1, 2003, Respondent began work at Fletcher High School as band director. Respondent had scheduled a rehearsal for the Fletcher band to commence at 9:00 a.m. on October 2, 2004, a Saturday. Notice of this session was published in advance. On October 2, 2004, Ms. Kirkpatrick attended the rehearsal. She arrived on time. Respondent did not arrive until 9:45 a.m. In the meantime band students and their parents were standing in the parking lot outside the band room not certain of their choices, who was in charge and what to do. The band room was not open. Ms. Kirkpatrick was concerned that the band students, who ranged in age from those who were ninth graders through seniors in high school, were unattended by school staff under arrangements previously made by Respondent. Parents in attendance were not responsible for the band students in this setting. In his absence, it was necessary for Respondent to have arranged for another school staff member to be in charge. (At the commencement of each school year Ms. Kirkpatrick expressed the need for persons in charge of events such as the October 2, 2004, practice to be in attendance when students are present or make arrangements for supervision by another person on staff. This necessity is also set forth in handbooks provided to the faculty.) The reason for Ms. Kirkpatrick's attendance at the rehearsal on October 2, 2004, was based upon difficulties in the past concerning Respondent's attendance and supervision at those types of activities. Cora Cooper was a parent whose daughter Gail Cooper was a band member in the fall of 2004. On October 2, 2004, Ms. Cooper drove her daughter to the band practice and arrived at 9:00 a.m. She observed that Respondent came to the practice session 45-minutes late. As a consequence the band members were not being supervised. Supervision of the students was an expectation which Ms. Cooper had as a parent. Lauren Knopp was a band member who attended the October 2, 2004, practice. The roll call for the practice was scheduled for 9:00 a.m. In Respondent's absence the band members "sat around wondering what was going on," according to Ms. Knopp. She called her parents to come to offer supervision in Respondent's absence. On October 2, 2004, Scott Ensminger was a band member who attended the practice session. He recalls that the session was to begin at 9:00 a.m. He observed that Respondent did not arrive until approximately 9:45 a.m. In the meantime band members sat on the curb outside the band room waiting for Respondent's arrival. Students were calling their parents to tell the parents that the band director had not arrived. Some students were becoming agitated in Respondent's absence, as observed by Mr. Ensminger. On October 2, 2004, Susan Butensky took her child to the band rehearsal and noted that Respondent was not in attendance at that time. Scott Ensminger is her son. Before Respondent arrived at the rehearsal Ms. Butensky was receiving telephone calls from parents who wanted to know why the parents were being called by their children concerning Respondent's absence. Respondent's testimony to the effect that other band instructor(s), the middle school band director Jonathan Maerkle, the drum line instructor, Michael Gripstein, one or both, were there in his absence on October 2, 2004, is not credited. On October 5, 2004, a pep rally was held at Fletcher High. The band participated. One part of the band performance was in the field house, followed by another part of the performance with the drum line which performed at a bonfire. Once those performances had been completed the band members were to return instruments to the band room and leave. Ms. Kirkpatrick and the vice-principal, Dr. Titus, stayed at the bonfire until students had departed the bonfire area. The administrators walked to the band room around 9:00 p.m. to 9:30 p.m. Band students were still in the area. Some were waiting for rides. The band building was locked up and Respondent was not there. The band members did not have their instruments with them at the time. Eventually, Dr. Titus took the last of the children home at 10:00 p.m. On October 6, 2004, when Ms. Cooper went to pick up her daughter Alice following the pep rally she found her daughter and other students waiting for rides. Respondent was not there. On October 6, 2004, when Scott Ensminger returned his instrument to the band room he did not see Respondent. Respondent did attend band activities related to the pep rally. He was not in attendance when those band members observed by the school administrators were still in the vicinity of the band room. On November 13, 2004, the Fletcher High band was scheduled to attend a competition festival outside of Duval County, in Orlando, Florida. Respondent had told band members to assemble at the band room at 4:30 a.m. that morning. It was expected that Respondent would open the band room at that time, and be available for supervision of the students leading to the departure by bus after 5:00 a.m. Respondent was not at the band room at 5:00 a.m. that morning. His absence was noted by Ms. Kirkpatrick who was there at that time. He arrived sometime after 5:00 a.m., around 5:05 a.m. that morning. Prior to that time the band room had not been opened. Although band parents were there with the band students, they were not responsible for supervision. Respondent was responsible for supervision. No one else told Ms. Kirkpatrick that Respondent had asked that someone, a District employee be in charge pending his arrival. No other staff member was in charge during his absence. On November 15, 2004, Respondent sent Ms. Kirkpatrick an e-mail discussing events of November 13, 2004. Under the heading "Departure" Respondent stated: I initially arrived at school around 4:15 a.m. On the final draft for today's itinerary, I indicated that I would open the band room at 4:30 a.m. However I choose to immediately leave and go to Wal-Mart (on Beach & San Jose) to pick up a pair of pliers to fix one of the kid's tubas. I spoke with Robin [sic] Misco, chaperone/coordinator around 4:35-4:40 and told her that I was on the road to the school. . . . A copy of a Wal-Mart receipt admitted as evidence within Petitioner's Exhibit numbered 2 refers to "6 pliers" at a charge of $1.88 purchased on November 12, 2004 at 23:25. The receipt related to Respondent's actions indicated a purchase of pliers the night before the band trip. By comparison the e-mail by Respondent indicated that the transaction took place on the morning of November 13, 2004. Respondent's testimony in which he agrees that he picked up pliers on November 12, 2004, at around 11:25 p.m. and decided to "make that run" to return the pliers because they were not appropriate to deal with his needs is not credited. Nor is the representation in the November 15, 2004, e-mail that he left to go to the Wal-Mart (on Beach and San Jose) to pick up pliers, after leaving the band room sometime after 4:15 a.m. on November 13, 2004. What is found is that the pliers were purchased by Respondent on November 12, 2004, at 23:25 and that alone. On November 13, 2004, Scott Ensminger had arrived at the school by 4:30 a.m., the time the Respondent's printout sheet of instructions indicated for Mr. Ensminger to arrive. Because the band was delayed leaving, they arrived at the competition location in Orlando, Florida, 10 minutes before their scheduled time to play, having an adverse impact on its performance. The delay created an environment of general agitation among the band members, occasioned by Respondent's tardiness. Robyn Misco had a child in the Fletcher band in 2004. That child's name is Melissa Altavin. On November 13, 2004, Ms. Misco took her daughter to the school to travel to the band competition to be held in Orlando. At 5:00 a.m. when all band members were expected, Respondent had not arrived at the band room. Ms. Misco noticed his absence. Ms. Misco talked to Respondent by telephone after she and her daughter arrived at the school, prior to Respondent's arrival. Some discussion was held about Respondent getting directions for the buses and that he was on his way to the school. Ms. Misco recalls that Respondent arrived after 5:00 a.m. but before 5:30 a.m. In Ms. Kirkpatrick's opinion, as an educator, Respondent's tardiness and failure to supervise the band members because of his absence reduces his effectiveness as an educator. This conduct created problems, to include problems with band parents and their expectation for their children's enjoyment as members of the band. Respondent's tardiness created a safety concern due to the lack of supervision of the band students. Ms. Kirkpatrick also expressed her concern that it was not a positive environment for the students to be exposed to Respondent's tardiness in carrying out his duties.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Counts 2 through 6, within the Administrative Complaint, dismissing Count 1 to the Administrative Complaint, and suspending Respondent's Florida Educator's Certificate No. 763156 for a period of one year. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 7th day of March, 2008.
The Issue The issue is whether the Education Practices Commission should impose a penalty or sanctions against Respondent’s teaching certificate pursuant to Sections 1012.795 and 1012.796, Florida Statutes, and Florida Administrative Code Rule 6B-1.006, based upon the allegations contained in the Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator’s Certificate No. 602255, which encompasses Elementary Education and English to Speakers of Other Languages, which is valid through June 30, 2003. After beginning her teaching career working in its Reading Lab, Respondent began teaching a fourth-grade class at Ft. Pierce Elementary School. After a year in that position, she taught for approximately nine years at Bayshore Elementary School, also teaching fourth grade, then transferred to St. Lucie Elementary School, where she also taught a fourth-grade class her first year. St. Lucie Elementary School was a new school, which had opened in August, 1996. Respondent taught third grade during the 1998-1999 and 1999-2000 school years at St. Lucie Elementary School after being reassigned from her fourth-grade class. Dr. Jane Hartman is, and was, at all material times, principal of the school. Among her many duties, Dr. Hartman evaluates the instructional staff and attempts to be in the various classrooms frequently. Dr. Hartman provides feedback and support to her teachers in a variety of ways, including staff development days, written suggestions to teachers, and grade chair meetings. Teachers at St. Lucie Elementary School are given a copy of the school handbook, which is discussed at the beginning of each year. In the event Dr. Hartman receives a parent complaint, she first contacts the staff member to discuss the issues. Thereafter, Dr. Hartman arranges a face-to-face conference with the parent, administration, and the teacher, to ensure that everyone is “comfortable that the relationship has mended” so they can “move forward.” During Respondent’s first year at St. Lucie Elementary School, 1997-1998, Dr. Hartman received some complaints from parents concerning Respondent’s dealings with the parents of her students and with various classroom management issues. Dr. Hartman engaged in informal counseling with Respondent concerning these complaints, and observed some changes on Respondent’s part, although not enough. Dr. Hartman and other members of her administration frequently sent notes to Respondent concerning recommendations and criticisms about her classroom performance. Dr. Hartman reassigned Respondent to a third-grade class at the end of her first year teaching at St. Lucie Elementary School, believing that Respondent would have more success with a smaller number of students who, being younger, might be easier to teach. The average age of a fourth-grade student is nine years old. During her career as an educator, Dr. Hartman has both taught fourth graders and had the opportunity to observe fourth graders in the classroom. Fourth graders are normally at that age where they love their teacher; are able to read and write; are creative; and are ready to learn about their world. Dr. Hartman believed Respondent’s class to be an average class of students, a “sweet class in that they not only cared what was said to them personally,” but also, “what was said to their friend, what was said to someone who wasn’t as strong academically.” Respondent referred to many of the students in the class as having behavior problems. Ms. Drew, a music teacher at St. Lucie Elementary School, taught many of Respondent’s students the year they were in her class. Ms. Drew found these students not to be “bad,” but to be “children who had some bad experiences.” Ms. Drew “felt bad” for many of the students who were in Respondent’s class and agreed to teach a fifth-grade class the next year to help many of Respondent’s former fourth graders. Petitioner’s witnesses at hearing consisted primarily of students from Respondent’s fourth-grade class and their parents. The students complained that Respondent had belittled them in her class and made their fourth-grade year a miserable experience. The former students related comments having been made that they were “slow,” “stupid,” “babies,” “stupid idiots,” and that Respondent was “smarter and had more education than all your parents put together.” The students testified that Respondent yelled at them, “was mean,” told them to “shut up,” embarrassed them in front of the other students, and threatened to tape record them so that their parents could hear how much they misbehaved in class. One student was embarrassed in front of the class when Respondent insisted she call her mother on a speakerphone to address why she had not returned her paperwork and money for a candy sale. Another student reported to his mother that Respondent, an African-American herself, told him he was “acting like a stupid nigger.” Many of the students testified that, while they had previously enjoyed school, after being in Respondent’s class, their self-esteem had been shattered by Respondent’s behavior in class. St. Lucie Elementary School followed “Loving Discipline A to Z,” a guide for teachers to follow regarding discipline. Respondent failed to follow these guidelines. Respondent would punish the entire class for the actions of a few students by making them write sentences that, in some cases, were grammatically incorrect. Respondent would also punish the entire class for the actions of a few students by not allowing them to have recess or go to music or art classes outside the regular classroom. Respondent, for another form of punishment, would not choose “Lynx Leaders,” an award given to students who performed well. Respondent enforced inconsistent policies concerning use of the restroom. Although she testified that students could use the restroom whenever they needed as long as it was vacant, at times she refused to allow students to use the restroom, resulting in at least one student wetting his pants in class on more than one occasion and being ridiculed by other students in the class. The allegations by the students against Respondent were made at the time the students were in her class, both verbally to their parents and in writing to their parents and school officials, as well as in testimony at hearing, six years after they had been in Respondent’s fourth-grade class. Respondent’s disciplinary measures were too harsh for fourth graders. Assistant Principal Linda Applebee testified that Respondent had problems following directions. Respondent failed to participate in a bus evacuation drill in February of 1998, and failed to perform a required book check at the end of a nine-weeks' period, which resulted in the school not billing parents for missing books and therefore having to pay for books that were not returned. Dr. Hartman testified that “chaos” reigned in Respondent’s classroom, and that there had never been a teacher, either before or after Respondent, who had such difficulty maintaining classroom management. Dr. Hartman suggested that Respondent observe other classrooms where her students experienced physical education, art, or music, and did not experience the same disciplinary problems. Respondent never took Dr. Hartman’s suggestion. Respondent admitted to some chaos in her classroom when she described one day when a student was simulating a sex act on the floor while another one scribbled on her desk with a marker. Respondent blamed these problems on “poor parenting skills” rather than on her inability to control the classroom. Respondent had a policy of calling a student’s parents when a student refused to follow a warning to behave, but she failed to follow her own procedure. Dr. Hartman believed that Respondent did not follow school procedures and had difficulties with classroom management. Dr. Hartman repeatedly gave Respondent advice and support, but Respondent failed to change her behavior. For example, Dr. Hartman met with Respondent on September 7, 1998, to discuss the resources available at the school for dealing with classroom management. Dr. Hartman informed Respondent that 1) Level I infractions should be handled by the individual staff member involved, rather than immediately calling the front office, which Respondent often did; 2) Discussions about a student should not be held in front of the student or the class; 3) Students should be given supplies needed to participate in class; 4) Students need to be told what to do; 5) Students should be praised for doing what is expected; 6) Students should not be placed in the planning room for time out; and 7) Respondent should point out only positive behaviors of the students. Dr. Hartman explained that violations of these items as set forth in her letter dated September 7, 1998, would have a negative effect on her competence to perform as a teacher. Respondent refused to attend monthly faculty meetings on a regular basis. Further, when she did attend, Respondent often had to be called and reminded to attend, then arrived late and refused to sit with her team members, sometimes even typing at a computer during the meeting. Faculty meetings are important because they help the administration achieve its goals of having a school act with consistency and a common vision and purpose. Respondent sometimes failed to cooperate with parents and the administration in the scheduling and conducting of parent-teacher conferences. At least one family had to involve both Dr. Hartman and the School Board in order to hold a meeting with Respondent. Often, the meetings proceeded badly with Respondent taking little or no responsibility for the issues expressed by the parents. In January of 1998, an incident occurred involving Respondent at a basketball game in St. Lucie County between Lincoln Park Academy and its cross-town rival. Respondent’s daughter, along with one of her friends, was arrested at the game because they refused to listen to law enforcement officers who attempted to remove them from a confrontation with other students who had congregated outside the over-filled gym where the game was taking place. When Respondent arrived at the rowdy scene outside the basketball game, she began to argue with the two law enforcement officers who were arresting Respondent’s daughter and her friend. Respondent used racial epithets directed at the two officers and engaged in disorderly conduct. She called Officer Terry Miller, an African-American, an “Uncle Tom” which he took to mean an African-American person who takes the side of white people rather than people of his own color. She called Lieutenant David Trimm, who is white, a “cracker,” a racial slur used to describe a white person who is prejudiced against African-Americans. In addition to the racial epithets, Respondent attempted to incite the crowd by yelling about the Ku Klux Klan getting away with whatever they want, and that no arrests would have been made had the crowd been predominately white rather than African-American. Based upon Respondent’s actions, both Officer Miller and Lieutenant Trimm feared for their safety. Both officers had dealt with arrests of minors in the past and with their parents who become upset when they see their sons or daughters in handcuffs, but Respondent’s behavior was “totally different” from what they had experienced in the past. Officer Miller “was shocked” at Respondent’s behavior, especially in light of the fact that she was a teacher, and Lieutenant Trimm would have arrested her had he known at the time she was a teacher. Respondent’s behavior at the basketball game was unprofessional and so racially charged that a riot could have resulted from her actions. Dr. Hartman did not reprimand Respondent at the time of the incidents giving rise to this hearing because she believed Respondent could actually improve and change her behavior. After Respondent failed to take Dr. Hartman’s and Ms. Applebee’s advice, Dr. Hartman decided to change Respondent’s position so that she taught third-grade students, in hopes that “a little bit younger would soften her a bit.” Dr. Hartman’s reassignment of Respondent to a third- grade class for the following school year necessitated that her classroom be moved. Some of Respondent’s classroom items had been moved at the beginning of the 1999-2000 school year, and Respondent attempted to take compensatory leave at the start of the year, but failed to follow the proper procedures which included seeking prior permission from Dr. Hartman. Dr. Hartman called Respondent into her office to discuss Respondent’s failure to follow school policies concerning attendance and attitude at faculty meetings and unauthorized use of compensatory time. Respondent did not respond to Dr. Hartman’s questions, but handed her a letter of resignation, accompanied by an anonymous letter criticizing her teaching abilities that had been left in Respondent’s school mail slot. Respondent claims to have written the resignation letter the night before in response to the anonymous letter that she considered to be “harassment.” The substance of the letter, purportedly from a “very concerned parent,” was that Respondent “will always be remembered as a miserable, nasty, uncaring, cruel teacher that does not deserve to teach anyone, especially children.” Respondent further claims that she wrote the letter of resignation in an attempt to be transferred from St. Lucie Elementary to another school. Respondent is aware that, in order to be considered for a transfer to another school, she must first interview with that school and be offered a position. No other school had offered Respondent a position at the time she handed her resignation letter to Dr. Hartman. Therefore, Dr. Hartman could not have considered her request for a transfer. Initially, Dr. Hartman only read the first part of the resignation letter since, once she realized she was going to be without a teacher on the first day of school, she acted quickly to inform her assistant, Ms. Applebee, so that she could immediately seek a substitute to start the next morning. Once Ms. Applebee read the letter, she perceived it to be a threat to the safety of the students and faculty of St. Lucie Elementary School. Dr. Hartman did not read the entire letter until 6:00 p.m., on August 19, 1999, the first day of school because she was busy with all of the special challenges the first day of school presents every year. Once she read the letter, however, Dr. Hartman had “extreme concerns” about the following paragraph: After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I’ve been under your supervision. This included lack of administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude toward students, minorities, and me. These are conditions in [sic] which no one should be subjective [sic] in the workplace. In fact, it seems to almost define going postal. (Emphasis added) Dr. Hartman believed the “going postal” language meant that Respondent might come in and shoot people. Assistant Principal Applebee was concerned for their safety, after she read the letter. Ms. Jane Grinstead, Executive Director of School Operations for Zone 2, St. Lucie County School District, thought the letter constituted a threat. Even Respondent admitted that her husband warned her that “somebody might take your letter offensively,” yet she still gave it to Dr. Hartman. The letter came to Dr. Hartman at a time that was close to the shootings at Columbine High School in Colorado. Dr. Hartman was trained to be on alert for the type of traits that might be exhibited by a person who would do violence at a school. Those traits include antisocial behavior and failure to follow procedures, two traits exhibited by Respondent during her tenure at St. Lucie Elementary School. Further concern arose because this was a time when some United States Postal workers had assaulted, shot and killed their supervisors and some innocent bystanders. As a result of her concerns, Dr. Hartman contacted Ms. Grinstead who put her in touch with Dave Morris, head of security for the St. Lucie County School District. Mr. Morris arranged for a school resource officer to follow Dr. Hartman around the next school day, August 20, 1999. At the end of the day, Assistant School Superintendent, Russell Anderson, spoke with Respondent and informed her that if she wanted to resign, she must leave the school premises, and the resignation would be accepted at the next School Board meeting. During the meeting with Respondent, Mr. Anderson discussed her claims of harassment with her and offered her the chance to file a formal complaint for harassment against Dr. Hartman. Also, Respondent’s union representative, Ms. Clara Cook, informed her that she could file a formal complaint, yet Respondent declined to do so. Based upon his safety concerns, Mr. Anderson asked the school resource officer, Mr. McGee, to escort Respondent off campus. He then drafted a Notice of Temporary Duty Assignment which informed Respondent that she is “further prohibited from being on any school district property.” Respondent requested to rescind her resignation on August 23, 1999. On August 24, 1999, Respondent’s letter of resignation was rescinded and she was suspended without pay by the St. Lucie County School District. On October 6, 1999, Respondent was suspended without pay and notified that the St. Lucie County School District would recommend that she be terminated at the next School Board meeting based on her violation of School Board policies. After a hearing, Respondent was terminated by the St. Lucie County School District as a result of the contents of the resignation letter. As a result of the incidents culminating in her dismissal, Respondent’s effectiveness as a teacher has been called seriously into question. Dr. Hartman explained that an effective teacher is one who “cares about children, cares about their learning, knows how to communicate, [is] open to learning themselves at all times, [is] very caring, compassionate, willing to work with others, realizing the accountability and responsibility that we hold each day, celebrating. You have to be very intelligent because you’re constantly thinking on your feet, planning and preparing and organizing.” Assistant Principal Applebee believes that Respondent did not like the children she taught because she noticed Respondent was not always nice to them; she complained about them; and the children believed they had no one in the classroom who cared about them. Ms. Grinstead, a school district administrator with 35 years of experience, believes that an effective teacher is one who is 1) sensitive; 2) caring toward children; 3) communicates well with peers; 4) communicates well with parents and students; and 5) can give suggestions on ways the parents and the school can work together for the children. Other teachers at St. Lucie Elementary School “rallied to assist” Respondent’s class. Ms. Drew decided to teach fifth grade so she could teach the same students who had been in Respondent’s fourth-grade class. Dr. Hartman would not reemploy Respondent. Assistant Superintendent Anderson would not recommend Respondent for re-employment in the St. Lucie County School District based on the seriousness of the charges. Assistant Principal Applebee would never re-employ Respondent because she did not believe Respondent to be an effective teacher. Officer Miller believes that Respondent should not be reemployed as a teacher by the St. Lucie County School District. Each of Respondent’s former students and their parents does not believe that Respondent should be employed as a teacher anywhere. Respondent takes no responsibility for any of the allegations made against her. She believes that she did nothing wrong, but that the problems complained of by the administrative staff, law enforcement personnel, her former students, and their parents are the result of either discrimination, harassment, or manipulative children and their parents who refuse to take responsibility for their children’s behavior. Despite all the complaints lodged against Respondent by her former students and their parents, her former principal, assistant principal, school district administrators, and law enforcement officers, Respondent received satisfactory evaluations from Dr. Hartman for the period in question in this case. Respondent currently works for the Head Start program, caring for three- and four-year-old children. Before the Administrative Complaint was filed in this case, a substantially similar Administrative Complaint (the same except for the statutory citations which were renumbered by the Florida Legislature) was filed and scheduled for hearing before DOAH. The case proceeded to hearing and the prior Administrative Law Judge opened the record. Petitioner then attempted to amend the Administrative Complaint to correct statutory citations that had been renumbered by the Legislature. Respondent objected to Petitioner’s ore tenus motion to amend. When the Administrative Law Judge announced that he would not rule on the motion to amend at the hearing, Petitioner announced that it was voluntarily dismissing the Administrative Complaint without prejudice and would thereafter file a new complaint with the revised statute numbers. Respondent asserted at that time that she believed Petitioner’s voluntary dismissal would be dispositive of the claims and allegations in it; that she did not agree to a voluntary dismissal; and that she was prepared to proceed. Nonetheless, Petitioner voluntarily dismissed the Administrative Complaint, and DOAH entered an Order Closing File.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s teaching certificate be revoked for a period of 10 years, with reinstatement subject to the provisions of Subsection 1012.795(4)(b), Florida Statutes. DONE AND ENTERED this 11th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2004. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Mark F. Kelly, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Florida Administrative Code Rules 6B-1.001, 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(3)(g), and 6B-1.006(3)(h), and, if so, whether such conduct is just cause for dismissal of Respondent pursuant to Subsection 1012.33(6)(a), Florida Statutes (2003).
Findings Of Fact During the 2002-2003 school year, Gary was employed by the School Board as a band and orchestra director at James Madison Middle School (Madison). Gary had been employed by the School Board for two years previous to the 2002-2003 school year. Prior to the incidents which are at issue in this case, Gary had been thought of by the Madison school administrators, students, and parents as an excellent teacher, who was able to inspire and motivate students. Gary taught C.J., a ninth-grader, advanced band and intermediate band during the 2002-2003 school year. Sometime during that school year, Gary noticed a dead dragonfly on a window in the band classroom. The dragonfly was removed from the window and placed in a trash receptacle. C.J. said that he would eat the dragonfly for a dollar. Another student said that he would give C.J. a dollar, and Gary said, "Okay." C.J. retrieved the dead dragonfly from the trash can and ate the insect. Gary gave C.J. a dollar. C.J.'s parents learned of the dragonfly incident through a younger cousin of C.J., who also attended Madison. C.J.'s mother went to see Gary to discuss the incident. Gary indicated to the mother that he was sorry for what had happened and that it was poor judgment on his part. C.J.'s mother felt that they had addressed the issue during their conversation and left the meeting satisfied about the issue. Gary did not advise school administration about C.J. and the dragonfly. After the dragonfly incident another situation arose involving Gary and C.J.'s eating an inappropriate item. Gary and some students, including C.J., were eating lunch in the cafeteria. Gary was eating baked ziti and began chewing on a particularly hard piece of ziti. He removed the ziti from his mouth and placed it on the side of his plate. Gary offered C.J. 12 dollars to eat the ziti, saying, "I bet you won't eat this piece of baked ziti." C.J. replied, "Oh, yes, I will." Gary then told C.J. not to eat the chewed food. Other students were egging C.J. on to eat the ziti, and C.J. picked the food off Gary's plate and ate it. One of C.J.'s cousins related the ziti incident to C.J.'s mother, and C.J.'s mother paid Gary another visit. The mother was not happy about the ziti episode and spent more time discussing the issue with Gary than she did when she visited him concerning the dragonfly. Gary told C.J.'s mother that he had bet C.J. 12 dollars to eat the ziti. The mother told Gary not to pay C.J. the money. Before she left the school on the day of the ziti discussion, she went to see Gary a second time to inquire about the status of his health because C.J. had eaten food that had previously been in Gary's mouth. Gary assured her that he was in good health. Gary did not advise school administration about the ziti incident. Gary was provided a copy of the school district's "Code of Ethics" which contained a section entitled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." On of the admonishments in this section was "[k]eep your hands and other parts of your body to yourself." During the 2002-2003 school year, Gary put his hands inside students' pockets and searched for candy, chewing gum, notes, and money. He admitted searching the pockets of D.B., S.D., M.R., N.M., D.R., and L.B. Such actions were inappropriate and caused some of the students to feel uncomfortable. If a teacher suspects that a child has candy, chewing gum, or notes in his pocket, the correct procedure is to have the child empty his pockets so that the contents can be viewed. The teacher is not to put his hands in the student's pockets. L.D. was a student at Madison during the 2002-2003 school year, and Gary was her band instructor. L.D. considered Gary to be a "really good friend" as well as a teacher. During the 2002-2003 school year, L.D. was sitting on the stairs in the band room playing her band instrument. She played incorrectly, Gary came up to her, aggressively grabbed her neck, and said "urrr." She told him to stop, and he did. She did not think that his actions were sexual in nature, but did feel that they were inappropriate for a teacher. During the 2002-2003 school year, J.W. attended seventh grade at Madison. Gary was her band teacher. J.W. has hugged Gary, and he has hugged her back. J.W. has seen Gary hug other students at Madison. D.B. was a honor roll student at Madison. During the 2002-2003 school year, she was in Gary's first period orchestra class. She played the violin, and, during a two-week period when her violin was broken, she helped Gary in his office. Gary's office was located within the band room. The office had a door with a glass window, which took up at least three-quarters of the upper half of the door. Adjacent to the door, there was a large picture window which was on approximately the same level with the door window, but which was almost twice the size of the door window. A desk with a computer on it was located underneath the picture window. The top of the computer monitor came just below the bottom of the picture window. Occupants of the office could be seen from the band room; however, the evidence does not establish that the occupants could be seen fully from the band room. Gary made inappropriate comments to D.B., including telling her that she had sexy lips and telling her that she smelled good. These comments made D.B. feel uncomfortable. Gary also inappropriately touched D.B. While she and Gary were in his office, Gary "touched her inner thigh" and "rubbed it" and asked her if she knew how beautiful she was. In a second incident, Gary held her hand and rubbed her arm while she in his office to file papers during first period orchestra. During a third incident, Gary put his fingers inside her shorts at her waist, pulled her toward him, and asked her what she wanted. This incident took place when the door to the office was open. In another incident, D.B. asked Gary to tune her violin, and he put his hand up the bottom of her shirt. All the incidents happened during first period orchestra class when students were in the band room. Gary argues that D.B.'s testimony is not credible because of a conversation D.B. had with some fellow classmates. J.D., a classmate of D.B., was talking with D.B. and another classmate K.S. during fifth period of the 2002-2003 school year while Gary was still teaching at Madison. K.S. said, "You know what's being said about Mr. Gary is not true," and D.B. said, "Yeah, it's not true, don't say anything." The evidence did not establish what was being said about Gary and whether it concerned D.B.'s allegations against Gary. Thus, the evidence does not establish that D.B. was fabricating her allegations about Gary. Gary admits that he may have touched D.B. on occasion, but that the touching was not sexual in nature or inappropriate. M.R. was enrolled in Gary's second period and sixth period band classes during the 2002-2003 school year. She alleged that beginning in January 2003, Gary inappropriately touched her person. M.R. alleged that on two occasions when she was in Gary's office with the office door open and other students were present in the band room, Gary touched the outside of her clothing in her vaginal area. She also alleged that in a third incident that Gary placed his hand inside her pants underneath her underwear and rubbed her vagina. The third incident allegedly took place in the office with the door open and while other students were present in the band room. On a fourth occasion, M.R. alleged that Gary came up behind her in the filing room, placed his hands inside her shirt, and touched her breasts. The alleged incidents supposedly happened during third period lunch when other students were in the band room eating lunch or practicing. Of the students who testified at the final hearing and spent most of their lunch periods in the band room, none saw any inappropriate contact between Gary and M.R. M.R. had wanted to be first chair flute in her band class, but Gary made another student first chair. M.R. was angry about Gary's selection for first chair and told her friend J.W. sometime after Christmas 2002 that she was going to get even with Gary for not making her first chair. K.M., who was a student at Madison, overheard M.R. tell another student that the allegations and problems facing Gary were "what he deserves for not promoting me up in chair." M.R. does not have a good reputation in the community for truth and veracity. Her testimony concerning inappropriate touching by Gary is not credible, and it is found that those incidents did not happen. The School Board established other incidents of inappropriate behavior by Gary. Such behavior included telling a student that he could not wait until she was 21 so that he could be all over her and that it was a good thing that she was pretty because her brains would not get her anywhere; tickling her at the end of class; pulling her against her will onto his lap, and placing his arms around her arms and waist. Gary would also sit with students in the same chair in his office. Gary failed to tell school administrators of possible sexual misconduct between two students in the student restroom, when he became aware that some misconduct probably occurred between the two students. Although, the School Board proved these incidents, the School Board failed to allege the incidents in the Petition for Dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order dismissing Benjamin Leon Gary for just cause from his employment as a teacher with the School Board. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 24th day of June, 2004. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Mark S. Levine, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Benjamin B. Garagozlo, Esquire 3585 Murrell Road Rockledge, Florida 32955 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
