The Issue Whether Petitioner, Lee County School Board (School Board), has established "just cause" to terminate the Respondent, Patricia Slade (Ms. Slade), as a teacher.
Findings Of Fact Ms. Slade is a teacher at Lehigh Acres Elementary School and has worked for the Lee County School District since August 19, 1997. As a teacher, Ms. Slade is an instructional employee and her employment is governed, in part, by the collective bargaining agreement between the School Board and the Teachers Association of Lee County (TALC). The School Board is charged with the operation of the free public education in Lee County, Florida, and has the authority to terminate or suspend instructional employees. See § 1012.22(1)(f). The record shows by preponderance of the evidence that Ms. Slade has fallen asleep in her classroom during the school day on several instances and on one occasion left her classroom unattended. The record shows that for school year 2010-2011, Ms. Slade was a teacher for pre-kindergarten children, who are four-years-old. The School Board witnesses credibly testified that they had observed Ms. Slade asleep in the classroom on different dates. Ms. Sanchez, a grandmother of one of the students in Ms. Slade's classroom and school volunteer, credibly testified that she had observed Ms. Slade asleep three or four times during the school year. In one instance, Ms. Sanchez observed Ms. Slade asleep during the children's naptime for a period of approximately 30 minutes. Ms. Sanchez's testimony was corroborated by the credible testimony of Ms. Hicks, a former teacher and two teacher aides, Ms. Serrano and Ms. Kinney. Ms. Hicks credibly testified that she observed Ms. Slade on three occasions. Ms. Hicks described one of the occasions when she walked into Ms. Slade's classroom during the afternoon and found her asleep on the floor. Similarly, Ms. Serrano credibly testified that sometime in January 2011, during the students' naptime, Ms. Kinney had come to her classroom and asked Ms. Serrano to watch Ms. Slade's class while Ms. Kinney left to use the restroom. Upon entering Ms. Slade's classroom, Ms. Serrano found Ms. Slade asleep on the floor. Ms. Serrano credibly testified that she woke Ms. Slade up, because Ms. Serrano had to go back to her own classroom. Finally, Ms. Kinney, who was Ms. Slade's teacher aide, credibly testified that Ms. Slade had fallen asleep once before the winter break and more frequently after the winter break. In a written statement provided by Ms. Kinney to the school, Ms. Kinney indicated by February 2011, Ms. Slade was falling asleep in the classroom "once a week to every other week." During one of Ms. Slade's midday naps after the winter break, Ms. Kinney took a picture with a cell phone of Ms. Slade sleeping on the floor. The photograph, which was admitted into evidence, clearly shows Ms. Slade asleep on the floor of the classroom with the students asleep on their mats around her. The record also shows that on February 15, 2011, Ms. Slade fell asleep in the classroom. Mr. Dworzanski, assistant principal for the school, credibly testified that he went to Ms. Slade's classroom after being called by Ms. Kinney, because Ms. Slade was asleep. Mr. Dworzanski credibly testified that he found Ms. Slade "sitting underneath where the smart board was propped up against the wall and she was asleep." Mr. Dworzanski further testified that Ms. Slade was difficult to wake and that she was incoherent when she was finally aroused. Based on her incoherence, Ms. Slade was taken to the school nurse and paramedics were called. After this February 15, 2011, incident, Ms. Slade did not return to the class. Ms. Slade offered that she had "passed out" on the February 15, 2011, incident as the result of acute bronchitis. While Ms. Slade testified that she had acute bronchitis, her testimony was not credible for showing that her diagnosis of acute bronchitis was the cause for her being asleep or in an unconscious state on February 15, 2011. Therefore, the undersigned finds that there was no competent evidence to explain why Ms. Slade slept during the school day. Mr. Dworzanski credibly explained that a teacher is not permitted to sleep during the pre-kindergarten student's naptime, because the teacher must monitor the students and keep them safe. Apparently, not all four-year-old students sleep during naptime and the teacher needs to keep an eye on the students. Next, the record supports the finding that on one instance Ms. Slade left her class unattended. Ms. Kinney credibly testified that on one occasion Ms. Kinney went to the cafeteria to retrieve the school lunches. Upon returning to the classroom, Ms. Kinney did not see Ms. Slade in the classroom. Further, there was no adult supervision in the classroom when Ms. Kinney entered the class with the lunches. When asked by Ms. Kinney, the students informed her that Ms. Slade had gone to the bathroom. Ms. Slade returned "several minutes" after Ms. Kinney had returned to the classroom. Ms. Slade does not have any prior disciplinary record with the school, and was an effective teacher when she had been observed teaching.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating the employment of Patricia Slade, as a teacher. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 November, 2011.
The Issue Whether Respondent's suspension from employment with the Dade County School Board should be affirmed and whether Respondent should be dismissed from employment with the Dade County School Board.
Findings Of Fact Respondent, Jill Cohen (Ms. Cohen), has been a school teacher for fifteen years. At all times material hereto, Ms. Cohen, was employed by Petitioner, Dade County School Board (School Board) as an elementary school teacher under a continuing contract. 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 Dade County, Florida. On April 27, 1989, Ms. Cohen, while employed at Edison Park Elementary School, had to leave her classroom for a personal hygiene emergency. She asked another teacher with whom she shared the classroom to watch her students while she went to the school clinic. The other teacher advised Ms. Cohen that in a few minutes she had to pick the students up at the physical education field. While Ms. Cohen was absent, the other teacher had to leave the classroom to get her own students. With both teachers absent from the classroom, Ms. Cohen's students were left unsupervised. On May 8, 1989, a conference-for-the-record was held with Ms. Cohen concerning the incident on April 27, 1989, and eleven tardies Ms. Cohen had from January 12, 1989 through May 2, 1989. She was advised that she had a professional responsibility to supervise her students at all times, that leaving students unsupervised was a violation of school and state rules and regulations, and that she was required to report to work on time. Ms. Cohen was told that if an emergency requiring her to leave her class unsupervised arose, she was to notify the administrator so that supervision could be arranged. Additionally, she was advised that future incidents of this nature would result in a recommendation for further disciplinary action. On January 19, 1990, Ms. Cohen left her students unsupervised. During this unsupervised period, one child allegedly sexually abused another student. Upon returning to the classroom, Ms. Cohen learned of the incident and spanked the alleged perpetrator. Ms. Cohen did not report the incident. A conference-for-the record was held on February 5, 1990, concerning the January 19, 1990 incident and another alleged incident of lack of supervision. Ms. Cohen was again advised that she must provide adequate supervision of her students at all times and that if she had an emergency necessitating her absence, she was to contact the administrator. She was told that any reoccurrence of her failure to supervise her students would be deemed gross insubordination for which further disciplinary action would be recommended. Ms. Cohen was given a letter of reprimand. In February, 1990, Ms. Cohen was given an alternate work assignment through June, 1990 at Region IV Operations. The incident of January 19, 1990, was investigated by the Department of Health and Rehabilitative Services. The same incident was also investigated by the State Attorney's Office which brought charges against Ms. Cohen. As a result of these charges brought by the State Attorney, Ms. Cohen entered into a pre-trial advocacy program. A conference-for-the-record was held with Ms. Cohen on May 29, 1990, concerning the January 19, 1990, incident. On September 25, 1990, Ms. Cohen and the School Board entered into a Community Service Agreement, in lieu of suspension, dismissal, or demotion. The agreement included 160 hours of community service, tutoring students, and counseling students. The Florida Commissioner of Education filed an Administrative Complaint against Ms. Cohen as a result of the January 19, 1990, incident. The Administrative Complaint was resolved with a settlement whereby Ms. Cohen did not contest the allegations that Respondent failed to supervise students and spanked a student as set forth in the Administrative Complaint. As a result of the settlement agreement with Commissioner Castor, Ms. Cohen was given a written reprimand, her state teaching certificate was suspended for eight days, she was placed on three years probation, and was required to undergo psychological evaluation and counseling. Ms. Cohen received an overall unacceptable performance evaluation for the school year 1989-90. Ms. Cohen was assigned to the Morningside Elementary School (Morningside) for the 1990-91 school year due to the notoriety stemming from the January 19, 1990 incident. On June 11, 1991, Ms. Cohen accidently hit a student on the head with a stick. The student did not cry or tell Ms. Cohen that his head hurt. At the time of the incident, there were no physical signs on the student that he had been hit. Later a bump appeared on his forehead. When the student went home, he told his mother what happened. She called the police. The next day the student's mother, accompanied by a police officer, went to see the school principal. Ms. Cohen had not reported the accidental hitting of the student. The principal first learned of the accident when the parent and police officer met with the principal. As a result of the accidental hitting of the student, HRS, investigated the allegations and submitted a final report where the investigation was closed without classification. Ms. Cohen received an unacceptable performance evaluation for the school year 1990-91. Ms. Cohen was returned to Region IV Operations for alternate work assignment on August 29, 1991. In lieu of harsher disciplinary action, Ms. Cohen entered into another Community Service Agreement with the School Board on October 8, 1991. Ms. Cohen agreed to perform 200 hours of community service. On October 22, 1991, Ms. Cohen received a written reprimand relating to the June 11, 1991 incident. She was directed to implement appropriate procedures for dealing with inappropriate student behavior. Ms. Cohen was warned that further such incidents would be considered insubordination and would warrant further disciplinary action. After a psychological examination, Ms. Cohen was returned to Morningside for classroom duty in either December, 1991, or January, 1992, with conditions of employment which included, among other conditions, acceptable attendance at the work site and adherence to site directives, prescriptive directives and Code of Ethics stipulations. Ms. Cohen's performance began to improve and she received an acceptable performance evaluation for the 1991-92 school year. At the beginning of the school year 1992-93, the faculty at Morningside were advised that their students must be supervised and students were not to be left unattended. During the first week of school the teachers were given a faculty handbook, which was discussed at the first faculty meeting. The Morningside Elementary School Faculty Handbook provides the following pertinent directives: Discipline: It is the professional responsibility of the teacher to handle routine disciplinary problems. When it becomes necessary for a student to be removed from the classroom, the teacher should seek assistance from the principal, or his/her designee. No Student is to be removed from a classroom and placed in an area that is unsupervised by a qualified person. . . . (at page 1) . . . Supervision of Children: Children should be supervised by adults at all times. Teachers are responsible for walking children to and from physical education. In cases of emergencies, if you must leave students unattended, leave your door open and notify the teacher next door. (at page 3) . . . DISCIPLINE PLAN: Staff members are asked to have a discipline plan on file outlining steps taken to ensure understanding of class and school rules, procedures to be implemented when rules are not followed and positive reinforcement strategies. The county approved Assertive Discipline Plan is the preferred plan for all teachers. (at page 4). . . . PROCEDURES FOR HANDLING STUDENTS WHO ARE SENT TO THE OFFICE. In instances where the routine procedures for handling misbehaving students has not been effective, or if the incident is of a more serious nature, i.e., fighting, defiance of authority, vandalism, teachers will call upon the assistant principal, counselor or principal for assistance. (at page 5) . . . SOME DON'T'S: . . . Put child outside the classroom unsupervised. If a child needs to be excluded from class, send him/her to the office. (at page 7) . . . Accidents and Injury Reports - Student: When a child under your supervision is injured, notify the office and an accident report will be issued. This form must be filled in within 24 hours. (at page 28) At Morningside the teachers pick their students up at the physical education field at the beginning of the school day and escort them to the classroom. During January and February, 1993, Ms. Cohen was late to work three times, resulting in her students being late to class on those days. Ms. Cohen had prepared a discipline plan for the school year which plan provided for a student to have time out in another classroom as part of the progressive discipline. Her discipline plan was posted in her classroom, but had not been filed with the school administrator. Other teachers at Morningside had discipline plans which included time out for students in another classroom. The practice, however, was to not send a child alone. If the teacher or her assistant was unable to accompany the student, the teacher would send two other students to escort the child being disciplined to another classroom. Sometimes the teachers would call the office for assistance. On February 3, 1993, a student in Ms. Cohen's kindergarten class was coloring in a coloring book. Ms. Cohen took the coloring book away from the student. As a disciplinary measure, Ms. Cohen decided to send the student to another classroom for time out. She did not use the call button to alert the principal that she needed assistance. Ms. Cohen took the child to the door of their classroom and told the student to go to Ms. Holden's classroom. Ms. Holden's classroom was down the hall from Ms. Cohen's classroom. The doorway to Ms. Holden's classroom was recessed and could not be seen from Ms. Cohen's doorway. Ms. Cohen saw the student go down the hall but did not see her go into Ms. Holden's classroom. The student did not go into Ms. Holden's classroom, but stood outside and began to cry loudly. A school employee discovered the crying student alone in the hallway and took the student to the office. Morningside is located close to Biscayne Boulevard near an industrial district and a high crime area, known for prostitution and drug dealing. The school is designed with open corridors and no fencing around the school. Vagrants loiter around the school. On May 17, 1993, a conference-for-the-record was held to address the February 3, 1993, incident. Ms. Cohen received a performance evaluation for 1992-93 of unacceptable. On July 14, 1993, a pre-dismissal conference-for-the record was held with Ms. Cohen to address the pending dismissal action scheduled for the School Board meeting of July 21, 1993. At the July 21, 1993, meeting the School Board voted to suspend Ms. Cohen and commence dismissal proceedings against her. The Dade County Public Schools and the United Teachers of Dade have entered into a collective bargaining agreement (Labor Contract) which provides in pertinent part on page 15: ARTICLE VII - SAFE LEARNING ENVIRONMENT Section 1. Student Discipline A safe and orderly learning environment is a major priority of the parties. Such an environment requires that disruptive behavior be dealt with safely, fairly, consistently, and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct. . . . E. The teacher shall have the authority to remove a seriously disruptive student from the classroom. In such cases, the principal or designee shall be notified immediately and the teacher shall be entitled to receive, prior to or upon the student's return to the classroom, a report describing corrective action(s) taken. Guidelines for implementing this provision shall be developed by each Faculty Council/Shared Decision-Making Cadre. At page 88, the Labor Contract provides in pertinent part: Section 3. Workday The employee workday shall be seven hours and five minutes for employees at the elementary level . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. Cohen guilty of incompetency, insubordination and willful neglect of duty, sustaining her suspension without pay, and dismissing her from employment from the School Board of Dade County without back pay. DONE AND ENTERED this 3rd day of February, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 3rd day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4232 The following rulings are made on Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraph 2: Accepted. Paragraph 3: Accepted in substance. Paragraph 4: The first three sentences are accepted in substance. The last two sentences are rejected as subordinate to the facts actually found. Paragraphs 5-6: Accepted in substance. Paragraph 7: Rejected as not supported by the greater weight of the evidence. Paragraphs 8-18: Accepted in substance. Paragraph 19: Rejected as unnecessary. Paragraph 20: Rejected as immaterial since Ms. Cohen received an acceptable performance evaluation for the year 1991-92. Paragraph 21: Rejected as unnecessary to the facts found. Paragraph 22: Accepted in substance. Paragraph 23: Rejected as unnecessary to the facts found. Paragraphs 24-26: Accepted in substance. Paragraph 27: The first sentence is accepted in substance. The second sentence with the exception of "hysterically" is accepted in substance. The portion of the last sentence that Ms. Cohen was assigned to the region office is accepted and the remainder is rejected as unnecessary. Paragraph 28: The first sentence is accepted in substance. The second sentence is rejected to the extent that Petitioner is inferring that Ms. Cohen did not see the child to the doorway of Ms. Cohen's classroom. Paragraph 29: Accepted in substance. Paragraph 30: The first two sentences are not supported by the greater weight of the evidence. The last sentence is accepted in substance. Paragraph 31: Rejected as argument. Paragraph 32: Accepted in substance. Paragraph 33: The first sentence is accepted in substance. The second sentence is rejected as unnecessary. The remainder of the paragraph is rejected as constituting argument. Paragraph 34: Accepted in substance. Paragraph 35: Rejected as constituting argument. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue, Suite One Miami, Florida 33129 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Background Respondent is a teacher certified in English, which he has taught while employed by Petitioner. He was first employed by Petitioner during the 1984-85 school year. In 1987, he was awarded a professional service contract. He has six years' teaching experience outside Highlands County. Principals or assistant principals routinely conduct annual teacher evaluations. The evaluation form contains two sections. Section 1 contains 14 categories that are marked based on one or more classroom observations. Section 2 contains 15 categories that are marked based on classroom observations and experience with the teacher. The back of the evaluation form explains the marks as follows: Mark Description Commendable (C) Indicates exceptional performance of the identified behavior(s). Satisfactory (S) Indicates satisfactory performance of the identified behavior(s) Needs Improvement (NI) Indicates a need for the employee to strengthen/improve performance of the identified behavior(s). Must Improve (MI) Indicates a need for the employee to remediate deficient behavior(s). If the deficiency is not corrected, the employee's contract status could be affected. The back of the evaluation form explains the "NEAT Procedure/Due Process": When an employee is evaluated as Must Improve, remediation procedures must be implemented as follows: Notice--The employee has the right to receive full written notification of the identified deficient behaviors. Explanation--The employee has the right to receive a full explanation for the reason behaviors are considered deficient. Assistance--The employee has the right to receive assistance in remediating the deficient behavior. Time--The employee has the right to a reasonable amount of time to achieve remediation. Various documents exist to normalize the evaluations of teachers. However, a degree of subjectivity necessarily remains in the evaluation process. Petitioner has prepared a booklet entitled, "Performance Appraisal System for Instructional Personnel" (Appraisal Booklet). The Appraisal Booklet introduced into evidence is dated October 5, 1992, but, judging from the cover letter from the superintendent, was in effect for the entire 1992-93 school year. The Appraisal Booklet contains, at page 12, a section describing the assessment process. The booklet states in part: When a competency or behavior is marked "NI-Needs Improvement," the appraiser shall provide counseling and/or resources whereby improvement may occur. For each competency or behavior which is marked "MI--Must Improve," a remediation procedure must be designed and implemented. The procedures will be described in a Professional Development Plan, as called for in the NEAT procedures. Each deficient item shall be addressed in a separate [Professional Development Plan]. The plan shall include the following: Area to be improved: specify the identified problem. Specific desired improvement: write as a measurable goal or objective. Action to be taken: describe action the involved parties will complete to achieve desired improvement. Assistance plan: List and describe who will provide assistance, showing role of each participant. Time line: specify dates for each activity to be completed and evaluated. Evaluation: describe how and when evaluation of progress or success will occur. Consequences: specify consequences if improvement is not achieved satisfactorily. The Appraisal Booklet contains, at page 15, a section entitled, "Use of Assessment Data for Personnel Decisions." This section requires written comments for every C, NI, or MI. Under a subsection entitled, "Unsatisfactory Ratings," the Appraisal Booklet states in its entirety: For every MI assigned, the assessor will conduct a follow-up of the Professional Development Plan to determine if the appraisee accomplished the required improvement and/or when that competency will be reassessed. Failure to improve within the expected time may be grounds for returning to annual contract for an employee holding a Professional Service Contract or a Continuing Contract. If the deficiency is not corrected during the second year, it may be grounds for non-renewal. (See NEAT) If the appraisee receives two consecutive unsatisfactory annual evaluations, the superintendent shall notify the Department of Education as required by statute. On [the evaluation form] three or more ratings of MI . . . will constitute an "unsatisfactory annual evaluation" for purposes of reporting to the DOE. The Appraisal Booklet discusses C's. Nothing in this section of the booklet explicitly addresses NI's except, as noted above, that comments must accompany each NI. The contract between Petitioner and the teachers discusses evaluations, but not in such detail as to address the meaning of NI's and MI's. Concerning remediation, the contract states: Where deficiencies are brought to the teacher's attention by his/her supervisor, the teacher shall be responsible for taking the necessary steps for improving his/her skills to an acceptable level as determined by the principal. Assistance shall be offered the employee and such assistance for improvement shall be noted in writing and a signed copy be retained by the appropriate supervisor and the employee. Following remediation, reassessment shall be accorded the employee in compliance with the procedures of Article XI. If the final assessment report fails to note specific deficiency, it shall be interpreted to mean adequate improvement has taken place. The professional judgment of the evaluator shall not be subject to the grievance procedure. The contract acknowledges that it shall not be interpreted to abridge or in any way usurp the authority or power of [Petitioner] as established by constitutional provisions or state Board of Education regulations or statutes existing at the time of the [contract]. And further, [Petitioner] shall be relieved of compliance with any term or condition of this [contract] if such compliance is contrary to any constitutional provision or state Board of Education regulation or statute in effect or enacted subsequent to the signing of this [contract]. Petitioner has no clear written or unwritten policy regarding whether a performance deficiency evidenced by an MI is corrected by an NI, rather than a C or an S. The determination whether a teacher has corrected performance deficiencies depends on the circumstances. The Lake Placid Teacher Handbook for the 1992-93 school year, a copy of which was given to Respondent at the beginning of the year, notes that teachers are to administer their assertive discipline plan and enforce all school rules. Regarding student control, "teachers must not argue with students, use profanity or sarcasm, and must keep hands off students." Petitioner's Code of Student Conduct for the 1992-93 school year describes the teacher's role in the maintenance of discipline as starting with the preparation of a classroom assertive discipline plan, which outlines a series of increasing consequences for disciplinary problems. Under the first step, the teacher will follow his or her plan, which may contain consequences such as withholding a privilege, isolation, counseling, detention, extra work, task assignment, or a parent conference. Under the second step, if the misconduct is repeated, the teacher shall try to contact the parent and record the result. Under the third step, the teacher will refer the matter to the social worker, school nurse, Guidance Committee, or School Attendance Review Committee for positive intervention. Under the fourth step, if the problem persists or the misconduct becomes a major disruption, the teacher will complete a student disciplinary referral form and a school administrator will determine the appropriate punishment. Evaluations Prior to 1991-92 School Year Respondent's evaluation dated November 13, 1985, contains all S's with the exception of an NI for circulating and assisting students. The evaluation was prepared by Donn Goodwin, an assistant principal at Sebring High School where Respondent was then teaching. Respondent's evaluation dated March 5, 1986, contains all S's except for C's in demonstrating friendly, positive attitude toward all students; maintaining academic focus; using effective questioning techniques; providing for practice; dependability; and punctuality/attendance. The evaluation contains one NI for parent/community relations. The comment accompanying the NI is obscured, but suggests that Respondent did not schedule enough parent conferences, although he did a good job with those that he conducted. The evaluation was prepared by James Bible, the principal of Sebring High School. Respondent's evaluation dated September 4, 1986, contains all S's except for C's in demonstrating effective communication skills, presenting subject matter effectively, maintaining academic focus, arranging physical features of the classroom for a safe learning environment, dependability, work attitude, and commitment. A note at the bottom of the evaluation states that Respondent maintained an "excellent class." The evaluation was prepared by Michael Agner, an assistant principal at Sebring High School. Respondent's evaluation dated February 25, 1987, contains all S's except for C's in maintaining academic focus and maintaining effective classroom control and an NI in using specific academic praise. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated April 6, 1988, contains all S's except for C's in demonstrating effective communication skills, having materials ready, maintaining academic focus, using effective questioning techniques, punctuality/attendance, quantity/quality of work, commitment, and professional behavior/ethics. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated February 28, 1989, contains all S's. A comment under parent/community relations notes: "Need to continue working in this area. Parental support helps your teaching." A comment under student/staff relations adds: "Need to be mindful of backing students in corners with no alternatives." The evaluation was prepared by Mr. Bible. Respondent's evaluation dated October 17, 1989, was obscured in the copying process. It appears to contain all S's with some C's in Section 1. The evaluation was prepared by Thomas Knowles, an assistant principal at Sebring High School. Respondent's evaluation dated October 3, 1990, contains all S's. The evaluation was prepared by Ruth Hatfield, then an assistant principal at Sebring High School. Respondent's evaluation dated February 20, 1991, contains all S's except for C's in having materials ready and circulating and assisting students and NI's in punctuality/attendance, student/staff relations, personal appearance, and receptiveness. Among the comments under Section 1 is that the observer did not see Respondent's assertive discipline rules posted. Section 2 comments are that Respondent was often late and "very defensive--refuses criticism." Under student/staff relations, the comment is: "Alienates students. Backs up kids in corners. Need to be aware of this." Another comment suggests a need to dress more professionally. The final comment states: "Need to work on areas that deal with students and parents." The evaluation was prepared by Mr. Bible. A letter dated May 13, 1991, memorializes a conference that took place on May 9, 1991, between Respondent and Rebecca Clark, another assistant principal at Sebring High School. The letter states that Ms. Clark had noticed Respondent leaving his class while two guest speakers were making a presentation. Upon questioning, Respondent said that he had to run a quick errand and would be right back. Ms. Clark remained in the classroom until the end of the period, at which time Respondent returned. The letter warns Respondent that he must remain with his class and may not leave campus without prior authorization from an administrator. Evaluations During 1991-92 School Year A new principal, Calvin Smith, replaced Mr. Bible at Sebring High School for the 1991-92 school year. Mr. Smith conducted Respondent's next evaluation, which was dated December 2, 1991. Based on an observation taking place during a 50- minute period on November 26, 1991, Respondent received all S's in Section 1 except for a C in presenting the subject matter effectively and an NI in using specific academic praise. In Section 2, Respondent received S's in only five categories: keeping accurate records, punctuality and attendance, initiative, student evaluation, and professional growth. Receiving no C's in Section 2, Respondent received three NI's in personal appearance, receptiveness, and commitment and seven MI's in dependability, work attitude, parent/community relations, student/staff relations, quantity/quality of work, planning, and professional behavior/ethics. The comments for the NI's are brief and in handwriting. Under receptiveness, the comment is: "seem[s] to be afraid of dealing with a problem. I am only trying to make you a better teacher." The comment under commitment states: "dedicate yourself to your job. You have too much talent to waste." Each MI is treated in a separate Professional Development Plan. The Professional Development Plans, which are attached to the December 2 evaluation, consist of several parts: "area to be improved," "desired improvement," "action to be taken," "who will provide assistance," "time line for achieving objectives/goal/improvement," "evaluation process to determine improvement," and "consequences if improvement is not satisfactorily achieved." Under parent/community relations, the desired improvement is: "When dealing with parents you must exhibit an air of professionalism but be understanding." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over with the situation." Under dependability, the desired improvement is: "Should show he is able to be counted on without constant badgering." The action to be taken is: "Submit lesson plans on time. Supply I[n] S[chool] S[uspension] students with work when requested. Meet with parents without being directed to do so. Learn to deal with students as an adult rather than getting into shouting matches, etc." Under student/staff relations, the desired improvement is: "Show you understand students by working with them in correcting deficiencies." The action to be taken is: "Don't get in students['] faces and yell at them. Don't allow things to go on and then establish a rule of the next one goes to the office. Learn to deal with student problems rather than expecting the office to handle the problem." Under work attitude, the desired improvement is: "Show that you like what you do. Turn students on to your subject. Work on faculty relations." The action to be taken is: "Be cooperative in dealing with parents, students, and faculty members. Present an atmosphere of enthusiasm that is contagious and infectious to those around you." Each Professional Development Plan states that assistance or training would be provided if requested by Respondent. For student/staff relations, the plan states: "Inservice will be provided by administrators as requested and a workshop may be recommended." Similar language is contained in the plan for work attitude. Under time line for achieving objectives/goal, improvement, each Professional Development Plan states: "Should show some immediate improvement but enough improvement must be shown prior to evaluation in 92/93 school year to remove the MI." Each Professional Development Plan describes the evaluation process to determine improvement as: "List kept of ineffective behaviors. [Respondent] will be given a copy of each item placed in folder." Each Professional Development Plan warns that, "if improvement is not satisfactorily achieved," there will be a "recommendation to place [Respondent] back on annual contract." By letter dated December 16, 1991, Mr. Smith refers to the evaluation and the evaluation conference that took place on December 5, 1991. The letter notes that one of the Professional Development Plans required Respondent to supply in-school suspension students with work when requested. The letter acknowledges that Respondent had said at the conference that he would take care of all of the MI's. The December 16 letter notes that Respondent had already failed to provide make-up work for five named students who had been sent to in-school suspension. Students punished by in-school suspension are prohibited from attending their classes, but are sent to another part of the school. It is important for their teachers to provide their assignments, so the students can study the same materials that the teacher is presenting to their classes. The December 16 letter concludes: "Repeated cases of this problem will lead to my recommendation to the superintendent that you be suspended without pay for five (5) days for gross insubordination." Respondent received a second evaluation from Mr. Smith during the 1991-92 school year. Dated March 3, 1992, the second evaluation is slightly worse than the first. Section 1 contains the same C for the presentation of the subject matter and NI for using specific academic praise. A new NI appears in Section 1 for demonstrating friendly attitude toward all students, and a new MI appears for maintaining effective classroom control. The new MI rating appears to be based in part on Respondent's allowing several students to have food and drink in the classroom after telling one student to dispose of his food or drink. In Section 2, Respondent received five S's, as he did in the first evaluation, as planning went from MI to S and punctuality/attendance went from S to NI. Work attitude improved from MI to NI, but personal appearance and receptiveness went from NI to MI. A written comment states that dependability improved some, but not enough to remove the MI. The MI's on the March 3 evaluation are again the subject of attached Professional Development Plans. Under dependability, the desired improvement is: "Show you are able to be counted on without constant badgering." The action to be taken is: "Learn to deal with students without being sarcastic or getting into shouting matches. Student and parent complaints are numerous." Under parent/community relations, the desired improvement is: "Exhibit an air of professionalism in meetings with parents." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over. Show parents you care about their child." Under student/staff relations, the desired improvement is: "Work with students in correcting deficiencies." The action to be taken is: "Learn to deal with student problems. Be more friendly. Be consistent in your discipline but be fair." Under receptiveness, the desired improvement is: "Be able to listen to constructive criticism and follow suggestions made by administration." the action to be taken is: "Follow rules and regulations established for personnel and students at Sebring High School rather than defying directions given by an administrator." Each of the Professional Development Plans states that the administration will provide assistance or training if requested to do so by Respondent. The time line for achieving objectives/goal/improvement is now "immediate" for the cited areas. There is no longer any mention of the removal of MI's, except that the Professional Development Plan for student/staff relations requires: "Immediate improvement--MI must be removed prior to October 92 visitation." The consequence of Respondent's failure to remove the MI's remains returning him to annual contract. The March 3 evaluation is followed by a letter dated March 9, 1992, from Mr. Smith to the superintendent. Mr. Smith writes that Respondent has not improved since the December 2 evaluation and recommends that Respondent be placed on annual contract for the following school year. The Grievance Process On March 13, 1992, Respondent filed a grievance seeking a list of specific remedies for each MI in the March 3 evaluation, adherence to the NEAT procedure, a reconfirmation of the deadline stated in the December 2 evaluation of 1992-93 "for remediation," withdrawal of the recommendation that Respondent be returned to annual contract, and transfer of Respondent to another position where he could be evaluated by someone not part of the current Sebring High School administration. Mr. Smith responded to the grievance with two documents, both dated April 7, 1992. In a three-page memorandum, Mr. Smith recounted the December 2 evaluation, noting that Respondent's "statement to all of this (as he signed the assessment and the PDP's) was, 'You mean all I have to do is correct these and I will get satisfactories?'" The April 7 memorandum notes that the March 3 evaluation was worse than the December 2 evaluation. Despite the fact that, with one exception, the March 3 evaluation did not equate correction with the removal of MI's, the April 7 memorandum states: "[Respondent] still has until the 1992-93 assessment to remove the MI's from his assessment. However, if he does not, he will be notified of non-renewal of a contract for 1993-94." Attached to the April 7 memorandum are "Specific Remedies for Must Improve." These remedies track the areas receiving MI's in the evaluations and discussion in the Professional Development Plans. Under maintaining effective classroom control, the April 7 attachment informs Respondent that he is to ensure that his students follow the rules. Under dependability, the April 7 attachment gives 12 examples of assignments that Respondent must perform. These include timely providing grades for meetings of the School Attendance Review Committee, remaining current with printed attendance sheets, submitting in-school suspension assignments when requested, arriving and leaving on time, not leaving the classroom unattended, and not allowing the students to break the rules. Under parent/community relations, the April 7 attachment states that Respondent should meet with parents at his initiative rather than waiting until irate parents demand a conference after hearing their child's complaints. Also, the attachment advises Respondent to be "gentle" with parents and not be negative. The attachment suggests that Respondent return parents' telephone calls. Under student/staff relations, the April 7 attachment warns Respondent not to back students into a corner. The attachment notes that many reports indicate that Respondent uses sarcasm with students and then disciplines them when they reciprocate with sarcasm. The attachment recommends, "Work on your personality to be more accepting and understanding of students." Under quantity/quality of work, the April 7 attachment suggests that Respondent spend more time on grammar rather than literature alone. The attachment suggests that Respondent should become involved with students' activities so that they know that he cares about them, as well as about what they learn. Under receptiveness, the April 7 attachment notes a lack of desire by Respondent to change his attitude about the providing in-school suspension assignments. Under professional behavior/ethics, the April 7 attachment recommends that Respondent not retaliate against students. It is unclear exactly what Mr. Smith means by "retaliate"; it may mean confront the students in class or respond to the students' sarcasm with sarcasm. By letter dated May 13, 1992, Deputy Superintendent John Martin decided the grievance by determining that Petitioner would grant Respondent a subsequent year of employment, under a subsequent year or annual contract, to correct the indicated deficiencies, and, if Respondent "corrects the indicated deficiencies," he would be given a new professional service contract. The May 13 letter also states that Respondent would be transferred, as he had requested. Respondent chose not to pursue additional grievance procedures available to him, so the grievance was resolved at this point. On May 15, 1992, Petitioner informed Respondent that he had been appointed for a "subsequent year of employment . . . on annual contract pursuant to Florida Statute 231.26(3)(e)." On June 23, 1992, Petitioner and Respondent executed a contract for a "'subsequent year of employment,' as that term is used in 231.36(3)(e), Florida Statutes . . .," for the 1992-93 school year. The 1991-92 School Year During the 1991-92 school year at Sebring High School, Respondent experienced problems in his relationship with the students and parents and in his inability to fulfill certain important responsibilities imposed on each teacher. With students, Respondent was often sarcastic. When the students returned in like kind, Respondent took offense and disciplined them, often with a disciplinary referral to the office. Mr. Smith witnessed a half dozen confrontations between Respondent and students in the main office where Respondent made derogatory remarks to the students. With parents, Respondent often failed to behave professionally in parent/teacher conferences. He walked out on one conference involving a parent who was also a teacher at Sebring High School. He often responded negatively to parents and sometimes failed to follow through on conferences or even return parents' telephone calls. Respondent was often late in fulfilling his duties. He was frequently late in getting his grades or attendance sheets to the Student Attendance Review Committee, which consisted of a guidance counsellor, an administrator, student's teachers, and student's parents who met periodically to discuss a student's attendance problems. Respondent consistently failed to submit assignments for students who had been assigned to in-school suspension. Each of the deficiencies described in the preceding paragraph interfered materially with Respondent's performance as a teacher. With respect to each of these deficiencies, Respondent was materially worse than his fellow teachers at Sebring High School. The resulting evaluations were the worst ever given by Mr. Smith, who describes himself as a hard evaluator. Evaluations During the 1992-93 School Year As Respondent demanded in the grievance, Petitioner transferred Respondent to Lake Placid High School for the 1992- 93 school year. He was assigned to teach English to all of the ninth grade students except those in honors and dropout prevention. On November 3, 1992, Respondent received his first evaluation at Lake Placid High School. He received all S's except for C's in demonstrating effective communication skills, and student evaluations and NI's in maintaining academic focus and maintaining effective classroom control. The evaluation was prepared by David Robinson, who was an assistant principal. On February 25, 1993, Respondent received a second evaluation for the 1992-93 school year. This evaluation, which was prepared by the principal, Roger Goddard, was worse than the first. There were no C's, and there were NI's in demonstrating friendly attitude toward all students, maintaining academic focus, parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics. Under the comments in Section 1 of the February 25 evaluation, a note reads: "Needs skills in [knowing] when to use in-class discipline or office referral." The handwritten comments under Section 2 note that Respondent "had difficulty dealing with parents in conferences an/or returning phone calls" and "lack[s] rapport with students, staff, and administration." The handwritten comments state that Respondent is "many times defensive during conferences with administrators" and "needs a better procedure with make-up work utilizing school policy." By letter dated March 19, 1993, Dr. Goddard informed Respondent that he would be unable to reappoint Respondent for employment at Lake Placid High School for the following school year. Respondent asked Dr. Goddard to perform another evaluation, and Dr. Goddard did so on April 23, 1993. There were fewer NI's than in the February 25 evaluation, but the evaluation was not much better. Under Section 1, Respondent received all S's except for an NI in demonstrating a friendly attitude toward all students. An anecdotal comment adds: "There have been over 70 referrals for discipline during the year. This is as many as 20 other teachers combined." Under Section 2, Respondent received all S's except for three NI's in parent/community relations, student/staff relations, and receptiveness. Accompanying handwritten notes state that Respondent "still shows difficulty in dealing with parent conferences," "still lacks understanding of role of assistant principal [and] staff," and "many times still defensive regarding suggestions from administration." By letter dated April 26, 1993, Dr. Goddard advised Respondent that he could not change his original recommendation given on March 19. The letter states that the recommendation is based on the need for a change in the ability to handle discipline effectively within the classroom, handle parent conferences without conflict, and be receptive to administrative suggestions without a defensive attitude. By letter dated April 30, 1993, to Dr. Goddard, Respondent states, in part: . . . Some administrators are possessed by a sort of spectral indifference, and look at their fellow beings as ghosts. For them, teachers and other staff members are often merely vague shadowy forms, hardly distinct from the nebulous background of such a life, and easily blended with the invisible. But you, Dr. Goddard, are an honorable man and I believe, from our conversations, that you really care about the parents, staff, and students of our school. . . . Respondent's letter to Dr. Goddard discusses the preceding evaluation and asks for an opportunity to continue teaching. By letter dated May 25, 1993, Superintendent Richard Farmer states that Dr. Goddard had informed Mr. Farmer that Respondent had not successfully removed all deficiencies from his evaluation. The letter advises Respondent that his annual contract was expiring, Dr. Goddard had decided not to issue Respondent another annual contract, and, according to Section 231.36(4), Florida Statutes, Petitioner would not issue him a new professional service contract. By notice to the Florida Department of Education dated June 2, 1993, Dr. Goddard advised that, after two consecutive unsatisfactory annual evaluations, Respondent's employment with Petitioner was being terminated or not renewed. The 1992-93 School Year Despite the absence of MI's on the 1992-93 evaluations, the problems Respondent had experienced with students, parents, and administrators in 1991-92 worsened in 1992-93. With respect to relations with students, the basic problem is that Respondent reverted to sarcasm at Lake Placid High School, and his students reciprocated, just as his students at Sebring High School had done the prior year. Sarcasm bred sarcasm, which bred disciplinary referrals--125 of them in fact. Respondent outdistanced his nearest competitor in disciplinary referrals by 2.5 times. On two separate days, Respondent submitted more than 10 disciplinary referrals--more than most teachers submitted all year. As Dr. Goddard's comment notes, Respondent issued more disciplinary referrals than a score of his colleagues. The huge number of disciplinary referrals did not mean that Respondent was maintaining firm control of his classes. To the contrary, he was not able to maintain firm control of his classes, partly due to the atmosphere of mutual disrespect that his sarcasm engendered. The number of disciplinary referrals indicated that Respondent had lost control of the situation and tried to shift to the administrators the job of regaining control of his classroom. A major part of the problem, in addition to Respondent's sarcasm, was his inability to adhere to his own assertive discipline plan. Respondent's assertive discipline plan, which was duly posted in his classroom, contains the following consequences in increasing order of severity: warning, contact parents, detention, and office referral. Sometime during the school year, Respondent switched the second and third consequences, so that he would place a student on detention before he would contact the parents. This change was duly posted in the classroom. Respondent's assertive discipline plan is satisfactory, but he never adhered to it. Sometimes he gave detentions, but then failed to appear at the location where the students were to serve the detentions. Sometimes Respondent simply placed the offending students in the hall where they remained, unsupervised, in violation of school rules. Sometimes Respondent gave warnings, and often he gave disciplinary referrals. But he displayed an aversion to parent/teacher conferences by almost invariably omitting the step that required him to contact a parent. Nearly all disciplinary referrals were made prior to this step taking place, and many were made prior to giving the student a detention. Respondent clung doggedly to his sarcasm despite all efforts to free him from this habitual behavior. Dr. Goddard intervened at one point during a parent/teacher conference and prevailed upon Respondent to stop using sarcasm against the student who was the subject of the conference. Respondent's response was to post a sign in his room indicating a "moratorium" in the use of sarcasm--intentionally implying that the cessation in sarcasm would be temporary. At times, Respondent lashed out at students with hurtful remarks lacking even the thin veneer of humor. He told one student that he would be a serial killer. He told another student that he would never be rich and successful. He repeatedly referred publicly to one student as a witch and asked if she had taken her Midol. In front of another student's mother, as well as other teachers and Mr. Robinson during a parent/teacher conference, Respondent referred to a girl as "bitchy." Respondent refused to accommodate valid student needs, such as the unusual demands placed on one child by a disabled brother. The regressive effect on students of Respondent's embittered and embittering classroom presence was unwittingly reflected in another student's class journal. His early entries demonstrated an emotional vulnerability as he depicted his simple, rural lifestyle; his later entries were defiantly copied out of textbooks, magazines, or encyclopedias. As a result of Respondent's poor relations with students, more than one student quit Respondent's class, even if it meant taking English in summer school or another school or dropping out of high school altogether. One parent checked her son out of school just long enough that he would not have to attend Respondent's class. By the end of the 1992-93 school year, morale among Respondent's students and their parents was a very serious problem. Respondent's relationship with parents was, if possible, even worse than his relationship with students, although his contact with parents was less frequent. During one meeting with a father in the main office, the parent and Respondent had a heated exchange. Mr. Robinson intervened and diplomatically tried to end the conference. After the parent had started to walk away, Respondent restarted the argument and approached the parent until their noses were touching. Mr. Robinson again broke up what had transformed from a conference into a confrontation, and again Respondent reinitiated the engagement. Again, Mr. Robinson had to break up the argument. Mr. Robinson attended another parent/teacher conference in which the mother, according to Respondent, looked at him with "eyes . . . like daggers." (Tr 541) The mother observed that her daughter had no problems in any other classes but Respondent's class. The parent charged that Respondent's class was out of control. Respondent saw that Mr. Robinson was not "going to fulfil his role as mediator," so Respondent got up, announced that "I'm not going to take this damn stuff anymore," and walked out of the conference. (Tr 542) At first glance, Respondent's relationship with the administrators seems better than his relationships with the students and parents, but this is due to the professionalism of Dr. Goddard, inexperience of Mr. Robertson, and uninvolvement of Ms. Hatfield. For different reasons, each administrator at the school responded differently to Respondent's increasingly bizarre behavior and in no case did any administrator at the school ever lose his or her composure in dealing with Respondent. Respondent believes that he has been unfairly treated by every administrator at Lake Placid High School, and at least two at Sebring High School. Interestingly, Ms. Hatfield had given Respondent his last evaluation-- in October, 1990--without an NI or MI. However, without any evident provocation, Respondent demanded that the other assistant principal, Mr. Robinson, handle Respondent's evaluations and disciplinary referrals. Respondent was apprehensive that Ms. Hatfield might be biased due to her past service at Sebring High School. In November, 1992, Ms. Hatfield had a conference with Respondent and cautioned him that she was receiving a number of student complaints about his use of sarcasm. Respondent's reaction was to request that he be evaluated by Mr. Robinson, who was in his first year of service as an assistant principal. In retrospect, Respondent's demand proved unwise. As evidenced by his treatment of another teacher, Mr. Robinson displayed a heightened sensitivity toward humor directed at students, even if the humor did not seem sarcastic at all. Thus, Mr. Robinson's concern about Respondent's sarcasm was not due to bias against Respondent, but was due to Mr. Robinson's concern that students be treated with dignity and respect. But, as noted above, even without Mr. Robinson's heightened concern about humor, Respondent's sarcasm exceeded the wildest imaginable limits. Dr. Goddard intervened after the first evaluation. Respondent's concern about bias defies reason and logic when applied to Dr. Goddard, who counselled Respondent and gave him an opportunity to discover for himself the shortcomings of his defensive style of dealing with students, parents, and administrators. To imply that Dr. Goddard's evaluations were orchestrated by individuals at Sebring High School or the district office is to ignore reality. As discussed in the Conclusions of Law, the very lack of coordination presents legal problems that could have easily been avoided with the smallest amount of coordination. Respondent had trouble with nearly every administrator. And Respondent consistently found himself the blameless target of unwarranted persecution. His paranoia interfered with his ability to do his job. This fact is best illustrated by the time that Dr. Goddard instructed the teachers to clean up their rooms in preparation for a visit that night by the school board. Respondent wrote the following on his chalkboard to be read by the school board members: "The fact that you're paranoid doesn't mean that they are not out to get you." In addition to problems with students, parents, and administrators, Respondent continued to display an inability to fulfill his important responsibilities. He failed to appear at ninth grade orientation at the beginning of the school year, despite the fact that he was a new teacher at the school and taught most of the ninth graders. Respondent routinely failed to supply grades to students for whom guidance counsellors were trying to prepare weekly progress reports in order to monitor the students' progress more closely than is possible with report cards. Respondent was routinely resistant to assigning make- up work. Students would have to pursue him for days to get assignments, until finally Respondent decided to write these up on the chalkboard. On more than one occasion, Respondent's solution--when pushed by parents or administrators--was to avoid the extra work imposed upon him by grading additional materials; rather than assign make-up work or tests, Respondent would simply not penalize the student for the missed assignment, such as by doubling the weight of the next grade. There is no evidence that the administration at Lake Placid High School learned of Respondent's 1991-92 evaluations at Sebring High School until Respondent mentioned them when he received his first evaluation at Lake Placid High School. There is no evidence that the actions taken by the administration at Lake Placid High School were influenced by anything except the Respondent's performance during the 1992-93 school year. Respondent was warned about his problems in evaluations going as far back as the 1980's when Respondent was evaluated by Mr. Bible. The March, 1986 evaluation identifies Respondent's reluctance to deal with parents. The February, 1989 evaluation suggests that Respondent lacked the support of parents and was placing students on the defensive. In the February, 1991 evaluation, Mr. Bible warned Respondent that he needed to improve in several areas, including student/staff relations and receptiveness to criticism from administrators. Again, Mr. Bible pointed out that Respondent was alienating students. Respondent's problems, which culminated in the exceptionally bad evaluations during the 1991-92 school year, largely represented a continuation of problems that had been identified in one manner or another for the preceding five years. But instead of correcting the problems, Respondent had allowed them to get worse. These problems were described in greater detail in the 1991-92 and 1992-93 evaluations due to the deterioration of Respondent's behavior. Petitioner provided Respondent with reasonable assistance in remediating his performance deficiencies. Dr. Goddard made numerous additional visits to Respondent's classroom, and he and other administrators routinely talked to Respondent. After the first evaluation in November, 1992, Mr. Robinson twice recommended to Respondent that he rely on his assertive discipline plan because he was referring too many students to the office. After discovering how poorly Respondent handled parent conferences, administrators ensured that appropriate persons participated in Respondent's conferences to model suitable behavior. In early February, 1993, Mr. Robinson gave Respondent a set of assertive discipline tapes to view to assist in imposing proper discipline in his class. This intervention preceded the February 25 evaluation by almost three weeks. About one week prior to the February 25 evaluation, Mr. Robinson suggested that Respondent attend a workshop on parent/teacher conferences. Respondent attended the workshop. Evidently arranged prior to the February 25 evaluation, Respondent went to a high school in another district to observe a ninth-grade English teacher. The practical effect of this assistance is attenuated by the fact that the February 25 evaluation preceded the visit, although the visit preceded the March 19 non-appointment letter, April 23 follow-up evaluation, and April 26 follow-up letter. The extent of the assistance effectively offered Respondent must be evaluated in the context of Respondent's problems. He was not an ineffective teacher due to an inadequate grasp of the course material or inability to present material imaginatively. To the contrary, Respondent is a highly intelligent, literate individual who is intellectual capable of being an outstanding teacher. If his problems were in his understanding of the material or an inability to find the methods to convey the material to his students, a program of assistance and inservice workshops probably could be designed to provide meaningful help. Instead, Respondent needed to stop disparaging students. He needed to stop confronting parents. He needed to stop ignoring administrators who were trying to stop Respondent from disparaging students and confronting parents. But Respondent simply refused to change his ways, and no amount of videotapes, inservice workshops, school visits, evaluation follow-ups, and informal discussions were going to help. Respondent was given a second chance when he was transferred to Lake Placid High School. But instead of addressing the source of the problem-- himself--he attacked students, parents, and administrators. He avoided performing rigorously all of his teaching duties, such as enforcing his assertive disciplinary plan and its graduated response to misbehavior, promptly providing make-up work, and sending interim grades when needed. Instead, he inexplicably continued to bicker with the students, provoke the parents, and defy the legitimate demands of the administrators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Highlands County enter a final order not issuing Respondent a new professional service contract. ENTERED on January 13, 1993, 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 January 13, 1993. APPENDIX Rulings on Petitioner's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9-18: adopted or adopted in substance. 19: rejected as irrelevant. 20-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-39: adopted or adopted in substance. 40: rejected as irrelevant. Nothing requires that Petitioner make "every effort" to help Respondent through the means cited. 41: adopted or adopted in substance. 42: rejected as subordinate. 43-44: adopted or adopted in substance. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-48 (first three sentences): rejected as irrelevant. 48 (last sentence)-53: adopted or adopted in substance. 54-56: rejected as irrelevant. 57-59: adopted or adopted in substance. 60-61: rejected as irrelevant. 62: adopted or adopted in substance. 63: rejected as irrelevant. 64-65: adopted or adopted in substance. 66: rejected as subordinate. 67-69: adopted or adopted in substance. 70: rejected as subordinate. 71-74: adopted or adopted in substance. 75-76: rejected as subordinate. 77-78: adopted or adopted in substance. 79: rejected as hearsay. 80-85: adopted or adopted in substance. 86: rejected as irrelevant. 87-92: adopted or adopted in substance. 93: rejected as subordinate. 94: rejected as irrelevant. 95-100: adopted or adopted in substance. 101: rejected as irrelevant. In fact, to permit either student to leave the classroom would violate Paragraph 11 of the Classroom Management section of the Teacher Handbook. 102: rejected as irrelevant. Mr. Smith wore sunglasses indoors during part of the hearing. 103-04: rejected as irrelevant. 105: rejected as subordinate. 106-17 (first sentence): adopted or adopted in substance. 117 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 118: rejected as irrelevant and subordinate. 119: rejected as hearsay. 120-34: adopted or adopted in substance. 135-37: rejected as irrelevant. 138: adopted or adopted in substance. 139: rejected as irrelevant. 140: adopted or adopted in substance. 141: rejected as irrelevant. 142-43: adopted or adopted in substance. 144: rejected as subordinate. 145-46: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance. 8-10: rejected as irrelevant. 11-14: adopted or adopted in substance. 15-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 17 (second sentence): adopted or adopted in substance. 18-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance. 21-22: rejected as subordinate. 23-24: rejected as unsupported by the appropriate weight of the evidence. 25-26: rejected as subordinate. 27-28 (first sentence): adopted or adopted in substance. 28 (second sentence)-29: rejected as unsupported by the appropriate weight of the evidence. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as subordinate. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected as unsupported by the appropriate weight of the evidence. This provision governs only when Petitioner must refer matters to the Department of Education. 35: rejected as subordinate. 36: rejected as unsupported by the appropriate weight of the evidence. 37-39: adopted or adopted in substance except as to meaningful follow-up conferences. 40-41: rejected as unsupported by the appropriate weight of the evidence. 42: rejected as irrelevant. COPIES FURNISHED: Superintendent Richard Farmer Highlands County School District 426 School St. Sebring, FL 33870-4048 Commissioner Doug Jamerson Department of Education The Capitol Tallahassee, FL 32399-0400 James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870-3698 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302
The Issue Whether just cause exists for Petitioner to terminate Respondent's employment as a teacher.
Findings Of Fact Based on the parties' stipulations and the competent substantial evidence adduced at the final hearing, the following findings of fact are made: The Parties Petitioner, Broward County School Board, is charged with the duty to operate, control, and supervise free public schools in Broward County pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by the District as a physical education teacher since 2004. His last teaching assignment was as a physical education teacher at Crystal Lakes Middle School in Pompano Beach, Florida. Administrative Charges The alleged conduct giving rise to this proceeding occurred on or about May 18, 2018. The Administrative Complaint alleges that on that day, Respondent did not fully cover his early morning duty in the school cafeteria, did not fully attend his assigned homeroom, and did not attend his first period class, thereby leaving his students unsupervised for part of those periods; and reported to work under the influence of controlled substances——specifically, alcohol and cocaine. As a result of this alleged conduct, Petitioner has charged Respondent, in the Administrative Complaint, with violating Florida Administrative Code Rule 6A-5.056(2), (3), (4), and (5), and specified provisions of school board policies 2400, 4008, and 4.9, discussed in greater detail below. Events Giving Rise to this Proceeding On the morning of May 18, 2018, Respondent reported to work under the influence of alcohol and cocaine, both of which are defined as "controlled substances" by school board policy. As a result, Respondent did not fully cover his early morning cafeteria duty, did not fully attend his assigned homeroom, and did not attend his first period class. A fellow physical education teacher, Cindi Ancona, was forced to cover Respondent's first period class. During the portions of the periods in which Respondent was not present in his classroom and in which Ancona was not covering his class, his students were left unsupervised. Ancona saw Respondent at the beginning of second period. When she questioned Respondent regarding his whereabouts during first period, she noticed that he appeared confused and off— balance and that his eyes were glassy, so she sent a text message to Sabine Phillips, the Principal at Crystal Lake Middle School, regarding Respondent's demeanor and appearance. Phillips and Assistant Principal Ben Reeves responded to Ancona's text message. Reeves entered the boys' locker room and found Respondent lying down in his office outside of the locker room. Phillips then entered the locker room and told Respondent that he needed to go to the office with her and Reeves. In the course of questioning Respondent about where he had been during his first period class, Phillips surmised, and informed Respondent that she had reasonable suspicion, that he was under the influence of controlled substances. Phillips contacted the District's Special Investigative Unit to request that Respondent be subjected to testing to determine whether he was under the influence of controlled substances. Phillips followed the designated procedures, which entailed completing and transmitting a completed Incident Report Form to the designated District personnel. The Risk Management Department determined that the requested testing was warranted and transmitted an Anti—Drug Program Passport to Phillips, who delivered it to Respondent. The Anti—Drug Passport informed Respondent that he would be subjected to controlled substances testing, and that the testing would be performed at Crystal Lakes Middle School. Respondent consented to the drug and alcohol testing. The Risk Management Department sent an employee health testing collector to Crystal Lake Middle School, where she conducted a breath alcohol and urine test on Respondent. The breath alcohol testing indicated that Respondent had blood alcohol levels of .101 and .095, both of which exceed the blood alcohol level of .04 that Petitioner has adopted as the threshold for being under the influence of alcohol. Petitioner's third—party contractor confirmed that Respondent had a blood alcohol level of .095 at the time he was tested. Julianne Gilmore, an environmental health testing specialist with the District's Risk Management Department, contacted Phillips and Respondent, notifying them both that Respondent was being placed on Administrative Reassignment and was to remain at home——i.e., not report to work——pending the result of the drug testing. This informal contact was followed by a letter dated May 21, 2018, confirming that Respondent had been placed on Administrative Reassignment and directing him to stay home pending further notice.1/ Gilmore also advised Respondent of the availability of the District's Employee Assistance Program ("EAP"), participation in which was not mandatory.2/ The results of Respondent's drug test were received by the Risk Management Department on or about June 1, 2018. Respondent tested positive for cocaine. Respondent does not dispute that he was under the influence of alcohol and cocaine while at school on May 18, 2018, and also does not dispute accuracy of the results of the blood alcohol and drug tests. Upon receiving the results of Respondent's drug test, it was determined3/ that Respondent's employment with the District should be terminated, notwithstanding that the next step in sequential progressive disciplinary process ordinarily would be suspension. A significant consideration in this decision was that Respondent had left his students unsupervised, placing their safety at risk. No evidence was presented that the students in Respondent's class were actually physically or psychologically injured or harmed as a result of Respondent being absent from his classroom on May 18, 2018. Prior Discipline Petitioner has a policy (Policy 4.9, discussed below) of imposing discipline in a progressive manner, which means that discipline typically is imposed in sequential steps in order to afford the employee the opportunity to correct his/her conduct and performance before he/she is suspended or terminated. The progressive discipline policy authorizes sequential disciplinary steps to be skipped for sufficiently severe misconduct. Petitioner previously has disciplined Respondent. On April 21, 2016, Petitioner issued a Summary of Conference memo, memorializing a conference in which Respondent was verbally admonished for having briefly left the students in his class unattended while he took an injured student to the physical education office to tend to his injury, during which time some of the students physically assaulted other students in the class. On February 10, 2017, Petitioner issued a Verbal Reprimand to Respondent, reprimanding him for being tardy to, and absent from, work without following the proper protocol for entering an absence. On December 1, 2017, Petitioner issued a Written Reprimand to Respondent, reprimanding him for continuing to be tardy to, and absent from, work without following the proper protocol for entering an absence. On February 14, 2018, Petitioner issued another Written Reprimand to Respondent, reprimanding him for consistently failing to follow absence/tardy—reporting procedures, resulting in his students being left unsupervised. He was informed that if he again failed to adhere to the appropriate procedure, he would be subject to further discipline, including possible termination of his employment. Other Key Considerations in this Proceeding Respondent was forthright in admitting that he suffers from a substance abuse problem. In 2016, Respondent sought help for his substance abuse issue through the District's EAP program at Phillips' suggestion, but did not complete the program——in part because he did not find its methods helpful in dealing with his problem, and in part because he believed that he could overcome his problem on his own as he always had done in his life. Respondent has come to realize that he cannot overcome his substance abuse problem on his own and that there is no shame in asking others for help in dealing with his problem. To that end, Respondent participated in, and has completed, the Evolution substance abuse program, which consisted of counseling sessions three to four days a week, for a three—to— four—month period, and attending therapy classes and meetings each week. As a condition of participation in Evolution, Respondent was subject to random substance abuse testing. He did not test positive for alcohol or drug use during his participation in the program. The spiritual counseling and substance abuse trigger counseling that Respondent received in the Evolution program have resonated with him and have helped him successfully address his substance abuse problem.4/ In order to avoid backsliding, Respondent remains in weekly contact with one of his therapists at Evolution, and attends meetings three to four times a week, to place himself in an environment that enables and fosters his success in fighting his substance abuse problem. Since commencing Evolution, Respondent has not engaged in alcohol or drug use. Respondent expressed remorse at his behavior and poor judgment at having reported to work under the influence of controlled substances on May 18, 2018. He testified that he did so because he previously had been reprimanded for being absent, and was concerned about missing more school. He recognized that his choice to go to school in that condition was "bad thinking at the time." Respondent credibly testified that he greatly enjoys teaching and that he chose teaching as a career because he loves working with kids, relates well to them, and believes he can help them. His colleague, Tyrell Dozier, testified that Respondent gets along well with his students and is a caring, effective teacher. Findings of Ultimate Fact As noted above, the Administrative Complaint charges Respondent with having violated State Department of Education rules and specified school board policies. Specifically, Petitioner has charged Respondent, pursuant to rule 6A—5.056, with misconduct in office, incompetency, gross insubordination, and willful neglect of duty. Petitioner also has charged Respondent with violating school board policies 2400(1) and (3); 4008 B.1., 3., and 8. and certain provisions of Policy 4.9. Whether the charged offenses constitute violations of the applicable rules and policies is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985)(whether there was a deviation from the standard of conduct is not a conclusion of law, but instead is an ultimate fact); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether a particular action constitutes a violation of a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, and policies is a question of ultimate fact). Based on the foregoing, it is found, as a matter of ultimate fact, that Respondent violated some, but not all, of the rules and school board policies charged in the Administrative Complaint. By engaging in the conduct addressed above, Respondent committed misconduct in office under rule 6A—5.056(2), which includes violating Florida Administrative Code Rule 6A— 10.081(2)(a), by having left his students unsupervised. By engaging in the conduct addressed above, Respondent engaged in conduct constituting incompetency under rule 6A—5.056(3). By engaging in the conduct addressed above, Respondent engaged in conduct constituting gross insubordination under rule 6A—5.056(4). By engaging in the conduct discussed above, Respondent engaged in conduct constituting willful neglect of duty under rule 6A—5.056(5). Respondent violated Policy 2400(1) by reporting to work while under the influence of controlled substances. However, no evidence was presented that Respondent was in possession of, or used, a controlled substance while on school board property or at a school—sponsored activity. Rather, the evidence establishes that Respondent consumed alcohol and used cocaine in a social setting the night before he reported to school on May 18, 2018. Therefore, the evidence does not establish that Respondent violated Policy 2400(3), as charged in the Administrative Complaint. Policy 4008, subsections (B)1. and 8., requires school board employees to comply with State Board of Education rules and school board policies. As discussed above, the evidence shows that Respondent violated rule 6A—5.056(2), (3), (4), and (5), and rule 6A—10.081(2)(a). In violating these rules, Respondent violated Policy 4008, subsections (B)1. and 8. However, the evidence does not establish that Respondent violated Policy 4008B, subsection 3., as charged in the Administrative Complaint. This policy imposes on instructional personnel the duty to "Infuse in the classroom, the District's adopted Character Education Traits of Respect, Honesty, Kindness, Self—control, Tolerance, Cooperation, Responsibility and Citizenship." While Respondent's conduct in reporting to school under the influence of controlled substances on May 18, 2018, may not have constituted self—control or respect for his duties as a teacher on that specific day, no evidence was presented regarding Respondent's behavior in the classroom—— whether on that day or on any other day. To the contrary, as discussed above, the evidence established that Respondent is a caring and effective teacher in dealing with his students. Accordingly, it is determined that Respondent did not violate Policy 4008, subsection B.3. The evidence establishes that Respondent violated Policy 4008(C), which requires instructional personnel to be on duty for a minimum of 7.5 hours on an instructional day. However, the evidence does not establish that Respondent violated the provision in Policy 4008, "Miscellaneous" section, which states that "all members of the instructional staff shall be expected to teach a full schedule of classes, unless prior approval from the area superintendent or superintendent is obtained." Policy 4008 establishes the overarching responsibilities and duties of Principals and instructional personnel in the context of performing their employment contracts. In this context, the "full schedule of classes" provision refers to a teacher's instructional schedule assignment for the school year rather than a specific per—hour requirement. In fact, to read this provision as urged in the Administrative Complaint would render it redundant to the statement (also in the "Miscellaneous" section) that "instructional personnel must be on duty a minimum of seven and one—half hours (7 1/2) hours daily. The Administrative Complaint also charges Respondent with having violated the District's progressive discipline policy, Policy 4.9. As more fully discussed below, it is found that Respondent that did not violate this policy. Based on the foregoing, it is found, as an ultimate fact, that although Respondent violated the rule and many of the school board policies charged in the Administrative Complaint, under the progressive discipline policy set forth in Policy 4.9, the appropriate penalty that should be imposed on Respondent in this case is suspension without pay for the entire period during which he has been reassigned from the classroom. Additionally, Respondent should be required to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment by Petitioner.5/ This penalty is appropriate based on the fact that Respondent has not previously been subject to suspension without pay under the progressive discipline policy, and takes into account several relevant considerations: specifically, that Respondent has a substance abuse problem for which he actively sought——and finally has been able to obtain——real, effective help in overcoming; that he has an approximately 14—year employment history with Petitioner that only, in the last two years, entailed discipline as the result of conduct that was caused by his substance abuse problem; that he is remorseful, understands that he made poor choices, and has obtained the counseling and therapy he needs in order to correct his performance problems through overcoming his substance abuse problem; that he is a caring and effective teacher who loves children and enjoys his teaching job; and, importantly, that no students were injured or otherwise harmed by Respondent's conduct on May 18, 2018. This penalty also is sufficiently severe to deter Respondent from committing future violations of rules and school board policies, and sends the message that this is truly his last chance.
Conclusions For Petitioner: Douglas G. Griffin, Esquire Broward County School Board Office of the General Counsel 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 For Respondent: Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East Seventh Avenue, Suite 301 Tampa, Florida 33605
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order suspending Respondent from his teaching position without pay commencing on the date on which he was reassigned from the classroom; reinstating Respondent to his teaching position; and requiring Respondent to submit to random drug and alcohol testing, at his personal expense, as a condition of his continued employment. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2018.
The Issue Respondent's continued employment with the Dade County Public Schools, as set forth in minutes of the School Board for October 19, 1977.
Findings Of Fact During the 1975-1976 and 1976-1977 academic school years, Respondent was an employee of the Petitioner as a teacher at the Richmond Heights Junior High School. (Stipulation) By order of the State Board of Education, dated September 20, 1977, the teaching certificate of Respondent, Department of Education Number 3436, was suspended for a period of two years. The matter is currently being appealed to the First District Court of Appeal. (Petitioner's Exhibit 1, Stipulation) On October 19, 1977, Respondent was suspended without pay from his position by Petitioner due to the suspension of his teaching certificate by the State Board of Education. On October 31, 1977, Respondent requested a hearing in the matter. Petitioner provided Respondent with formal notice of charges on December 13, 1977, seeking his dismissal from employment with the school system. Respondent became a teacher in 1937 and has been employed in that capacity by Petitioner since 1961. He testified at the hearing to the effect that, in his opinion, the present proceedings are improper in that the action by the State Board of Education was premature and should not have been taken until the charges upon which such action was based had been considered by Petitioner in administrative proceedings. Respondent sought to introduce character testimony in his behalf by a number of witnesses, but upon objection by Petitioner, such testimony was not permitted by the Hearing Officer as it would be irrelevant to the proceedings. The proffered testimony would have shown that the witnesses had all known the Respondent for a lengthy period of time and that he is a dedicated employee of the school system who has served his community and church as an example for students. (Testimony of Anders, Respondent)
Recommendation That Respondent, Raphu S. Williams, be dismissed from employment as a teacher by the School Board of Dade County, Florida, under the authority of Section 231.36(4), Florida Statutes. DONE and ENTERED this 18th day of April, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse McCrary, Esquire Dade County Public Schools Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132 Elizabeth DuFresne, Esquire One Biscayne Tower Suite 1782 Miami, Florida 33131 Phyllis O. Douglas, Esquire Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether just cause exists for Petitioner, DeSoto County School Board (School Board), to suspend Respondent without pay, and terminate her employment as an Exceptional Student Education (ESE) teacher.
Findings Of Fact Parties and Relevant Policies The School Board is charged with the duty to operate, control, and supervise public schools in DeSoto County. Art. IX, § 4(b), Fla. Const. (2018). This includes the power to discipline instructional staff, such as classroom teachers. §§ 1012.22(1)(f) and 1012.33, Fla. Stat. Respondent is an ESE classroom teacher at DeSoto County High School (High School). Although Respondent has been teaching for 23 years, she has only been an ESE classroom teacher for the School Board since 2016. Superintendent Cline is an elected official who has authority for making School Board personnel decisions. His duties include recommending to the School Board that a teacher be terminated. § 1012.27(5), Fla. Stat. David Bremer (Principal Bremer) was the principal at the High School at all times relevant to these proceedings, and Cynthia Langston served as the Assistant Principal. The parties’ employment relationship is governed by School Board policies, Florida laws, Department of Education regulations, and the Collective Bargaining Agreement (CBA) entered into by the School Board and the Desoto County Educators Association, a public union. The CBA relevant to this action was effective July 1, 2018, through June 30, 2021. The School Board employed Respondent on an annual contract basis. “Annual contract” means an employment contract for a period of no longer than one school year which the School Board may choose to award or not award without cause. § 1012.335(1)(a), Fla. Stat. The testimony at the hearing and language in the CBA establish that the annual contract of a teacher, who has received an indication he or she “Needs Improvement” or is placed on an improvement plan, is not eligible for automatic renewal. In these situations, the superintendent has discretion regarding whether to renew that teacher’s annual contract. See CBA, Art. 8, § 16. Article 22, section 8 of the CBA provides for progressive discipline for teachers in the following four steps: (1) verbal reprimand (with written notation placed in the site file); (2) written reprimand (filed in personnel and site files); (3) suspension with or without pay; and (4) dismissal. The CBA makes clear that progressive discipline must be followed, “except in cases that constitute a real immediate danger to the district or [involve a] flagrant violation.” February 11, 2019 (the February 11 Incident) This proceeding arises from an incident that occurred on February 11, 2019, after lunch in Respondent’s ESE classroom. The School Board alleges Respondent intentionally threw a foam or Nerf-type football at a student in a wheelchair when he failed to follow her instructions, and the football hit the student. Respondent asserts she playfully threw stress ball-type footballs up in the air and one accidently bounced and hit A.R.’s chair. Respondent’s classroom at the High School consisted of ten to 12 ESE students during the 2018-2019 school year. These students had special needs and some were nonverbal. On the day of the incident, there were nine or ten students in Respondent’s classroom, including A.R., a high school senior with cerebral palsy. Respondent kept small foam or Nerf-type footballs in her desk drawer. The testimony at the hearing established Respondent had used them in the classroom to get the students’ attention in a playful fashion. In addition to Respondent, four paraprofessionals assisted the students in the classroom. Of the four, only three were in the classroom during the February 11 incident: Ms. Walker, Mr. Blevins, and Ms. Murray. Respondent was responsible for A.R. while in her classroom. A.R. uses a wheelchair or a walker to get around, but has a special chair-desk in Respondent’s classroom. A.R. had difficulty in the classroom setting. Specifically, it was noted at the hearing that he has trouble processing what is happening around him, and that he needs help simplifying tasks that require more than one step. Although A.R. is verbal, he is slow to respond. A.R. was described as a “repeater” because he repeats things that others say, smiles if others are smiling, or laughs if others are laughing. In conversation, A.R. would typically smile and nod, or say “yes.” Ms. Walker’s and Mr. Blevins’s recollections of the February 11 incident were essentially the same. They testified that on the afternoon of February 11, 2019, the students returned to Respondent’s classroom from art class. They were excited and did not settle down for their lesson. As a result, Respondent became frustrated and yelled at the students to get their pencils so they could start their work. Respondent asked A.R., who was in his special chair-desk, to obtain a pencil. A.R. did not respond immediately and Respondent told him to get his pencil or she would throw a football. Ms. Walker’s and Mr. Blevins’s testimony established that, at this point, Respondent threw either one or two blue, soft, Nerf-type footballs approximately six inches long at A.R., who was looking in another direction. One of these blue footballs hit A.R. either in the side of his torso or back. A.R. began flailing his arms while he was in his chair-desk, and the entire room became silent. Ms. Murray was not facing A.R. during the incident, but she heard Respondent yell at A.R. to pay attention. She did not see Respondent throw the balls and was unsure if any of the balls made contact with A.R. After the incident, however, she saw two balls on the floor, picked them up, and returned them to Respondent. Ms. Murray did not recall the color of the footballs, and could only describe them as “squishy.” Respondent testified that A.R. was not paying attention, and she admits she told him she was going to toss the footballs if he did not get his pencil. She denies throwing a blue football at A.R., but instead claims she threw two smaller foam brown footballs. She denied any of the balls hit him, but rather, explained one of the brown footballs bounced off the floor and hit A.R.’s chair-desk; the other fell on her desk. The undersigned finds the testimony of Respondent less credible than the paraprofessionals’ testimony. First, all of the evidence established Respondent clearly threw footballs after A.R. did not respond to her instruction, and Respondent knew (or should have known) that A.R. was incapable of catching the football or responding positively. Second, Respondent’s version of what happened to the balls after she threw them is inconsistent with the testimony of Ms. Walker and Mr. Blevins that one ball hit A.R. Respondent’s testimony that one ball fell on her desk is also inconsistent with Ms. Murray’s testimony that she picked up two balls off the floor. Finally, Respondent’s version of events is not believable in part, because neither the brown nor the blue football entered into evidence had sufficient elasticity (or bounciness) to have acted in the manner described by Respondent. Based on the credible evidence and testimony, the undersigned finds Respondent intentionally threw the blue larger footballs at A.R. knowing he would not be able to catch them, one ball hit A.R. in the side or back, and A.R. became startled from being hit. There was no evidence proving A.R. was physically, emotionally, or mentally harmed. Report and Investigation of the February 11 Incident Both Ms. Walker and Mr. Blevins were taken aback by Respondent’s behavior. Ms. Walker was concerned that A.R. did not realize what was happening, and that the rest of the students were in shock. She did not think a teacher should throw anything at any student. Mr. Blevins similarly stated he was stunned and did not believe Respondent’s conduct was appropriate, especially because A.R. was in a wheelchair. At the hearing, Respondent also admitted it would be inappropriate to throw anything at a student even if it was just to get his or her attention. Both Ms. Walker and Mr. Blevins attempted to report the incident immediately to the High School administration. Ms. Walker left the classroom to report the incident to Principal Bremer, who was unavailable. Ms. Walker then reported to Assistant Principal Langston what she had seen happen to A.R. in Respondent’s classroom. During this conversation, Ms. Walker was visibly upset. After listening to Ms. Walker, Assistant Principal Langston suggested she contact the Department of Children and Families (DCF). Ms. Walker used the conference room phone and immediately contacted the abuse hotline at DCF. As a result, DCF opened an abuse investigation into the incident. Meanwhile, Mr. Blevins had also left Respondent’s classroom to report the incident to Assistant Principal Langston. When he arrived, he saw that Ms. Walker was already there and assumed she was reporting what had happened. Therefore, he did not immediately report anything. Later that day, Assistant Principal Langston visited Respondent’s classroom, but did not find anything unusual. She did not speak to Respondent about the incident reported by Ms. Walker. The next day, February 12, 2019, Assistant Principal Langston obtained statements from the paraprofessionals, including Ms. Walker and Mr. Blevins in Respondent’s classroom regarding the February 11 incident. These statements were forwarded to Superintendent Cline, who had been advised of the incident and that DCF was conducting an investigation. It is Superintendent Cline’s practice to advise administrators to place a teacher on suspension with pay during an investigation. If the teacher is cleared, the administrator should move forward with reinstatement. In this case, Principal Bremer met with Respondent on February 12, 2019, and informed her she would be placed on suspension with pay while DCF conducted its investigation into the incident. DCF closed its investigation on February 19, 2019. No one who conducted the DCF investigation testified at the hearing, and the final DCF report was not offered into evidence. Rather, the School Board offered a DCF document titled “Investigative Summary (Adult Institutional Investigation without Reporter Information).” This document falls within the business records exception to the hearsay rule in section 90.803(6), Florida Statutes, and was admitted into evidence. The undersigned finds, however, the Investigative Summary unpersuasive and unreliable to support any findings. The document itself is a synopsis of another report. Moreover, the document is filled with abbreviations and specialized references, but no one with personal knowledge of the investigation explained the meaning of the document at the final hearing. Finally, the summary indicates DCF closed the investigation because no physical or mental injury could be substantiated. On February 21, 2019, Principal Bremer notified Superintendent Cline that DCF had cleared Respondent, but did not provide him with a copy of the DCF report or summary. Principal Bremer did not have to consult with Superintendent Cline regarding what action to take regarding Respondent. Based on the DCF finding that the allegation of abuse or maltreatment was “Not Substantiated,” Principal Bremer reinstated Respondent to her position as an ESE teacher, but still issued her a written reprimand. The reprimand titled “Improper Conduct Maltreatment to a Student” stated in relevant part: I am presenting you with this written reprimand as discipline action for your improper conduct of throwing foam balls at a student. On February 11, 2019 it was reported you threw a football at [A.R.], a vulnerable adult suffering from physical limitations. As a result of this action, Florida Department of Children and Families (DCF) were called to investigate and you were suspended until the investigation was complete. Although maltreatment of [sic] Physical or Mental Injury was not substantiated, DCF reported three adults in the room witnessed you throwing at least two foam balls at [A.R.] because he did not get a pencil on time. Apparently [A.R.] did not follow through with the direction provided by you and you became frustrated for that reason. I am by this written reprimand, giving you an opportunity to correct your improper conduct and observe Building rules in the future. I expect you will refrain hereafter from maltreatment to a student and fully meet the duties and responsibilities expected of you in your job. Should you fail to do so, you will subject yourself to further disciplinary action, including a recommendation for immediate termination and referral of the Professional Practices Commission. On February 25, 2019, Respondent returned to her same position as an ESE teacher, in her same classroom, with the same students, including A.R. Superintendent’s Investigation and Recommendation to Terminate Meanwhile, Superintendent Cline requested a copy of the report of the investigation from DCF and contacted the DCF investigator. Based on his review of what was provided to him and his conversation with DCF, he concluded A.R. may still be at risk. Superintendent Cline found Respondent’s actions worthy of termination because “it is unacceptable to throw a football at a student who has cerebral palsy, and thus, such conduct violates” state rules and School Board policy. School Board PRO at 15, ¶ 72. There was no credible evidence at the hearing that A.R. or any other student was at risk from Respondent. The School Board failed to establish at the hearing what additional information, if any, Superintendent Cline received that was different from the information already available to him, or that was different from the information provided to Principal Bremer. There was no justification or plausible explanation as to why Superintendent Cline felt the need to override Principal Bremer’s decision to issue a written reprimand for the violations. On March 6, 2019, Superintendent Cline issued a letter suspending Respondent without pay effective March 8, 2019, and indicating his intent to recommend to the School Board that it terminate Respondent’s employment at its next regular board meeting on March 26, 2019. Attached to the letter were copies of the Investigative Summary, Florida Administrative Code Rule 6A- 10.081, and School Board Policy 3210. This letter was delivered by a School Board’s human resources employee to Respondent on March 8, 2019. Respondent did not return to the classroom for the remainder of the school year. Respondent’s Disciplinary History Prior to the February 11 incident, Respondent had received an oral reprimand for attendance issues on December 21, 2018. On February 6, 2019, Assistant Principal Langston met with Respondent to address deficiencies in Respondent’s attendance, lesson plans, timeliness of entering grades, and concerns with individual education plans for her ESE students. At that meeting, Assistant Principal Langston explained Respondent would be put on an improvement plan and that if Respondent did not comply with the directives discussed at the meeting, she would be subject to further discipline, including termination. Although the plan was memorialized, Respondent was not given the written plan until after she returned from the suspension. Ultimate Findings of Fact Respondent intentionally threw two footballs in an overhand manner at A.R., a student who could not comprehend the situation and could not catch the balls. She did so either in an attempt to garner the student’s attention or out of frustration because he was not following directions. Respondent did not violate rule 6A-10.081(2)(a)1., because there was no evidence the incident exposed A.R. to harm, or that A.R.’s physical or mental health or safety was in danger. Similarly, Respondent did not violate School Board Policy 3210(A)(1). Respondent violated rule 6A-10.081(2)(a)5., which prohibits a teacher from “intentionally expos[ing] a student to unnecessary embarrassment or disparagement.” The evidence established Respondent’s action in throwing the ball was intentional and was done to embarrass or belittle A.R. for not following her directions. For the same reason, Respondent’s conduct violated School Board Policy 3210(A)(5). Respondent violated rule 6A-10.081(2)(a)7., which states that a teacher “[s]hall not harass or discriminate . . . any student on the basis of . . . handicapping condition . . . and shall make reasonable effort to assure that each student is protected from harassment.” Again, the credible evidence established the act of a teacher throwing any item at any student, especially one who requires a wheelchair, is inappropriate and would be considered harassment on the basis of a student’s handicap. Similarly, Respondent violated rule 6A-10.081(2)(c)4., which requires that a teacher “not engage in harassment or discriminatory conduct which unreasonably interferes . . . with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.” For the same reasons listed above, Respondent’s conduct also amounts to a violation of School Board Policy 3210(A)(7). There was no evidence this conduct constituted a real immediate danger to the district, nor does it rise to the level of a flagrant violation. Therefore, the School Board must apply the steps of progressive discipline set forth in article 22, section 8 of the CBA. Pursuant to the terms of the CBA, Respondent should have received a written reprimand for the February 11 incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DeSoto County School Board: enter a final order finding Respondent violated Florida Administrative Code Rule 6A-10.081(2)(a)5., and (2)(c)4.; and corresponding School Board Policy 3210(A)(5) and (7); rescind the notice of termination dated March 6, 2019, and, instead, reinstate Principal Bremer’s written reprimand dated February 25, 2019; and to the extent there is a statute, rule, employment contract, or Collective Bargaining Agreement provision that authorizes back pay as a remedy for Respondent’s wrongful suspension without pay, Respondent should be awarded full back pay and benefits from March 8, 2019, to the end of the term of her annual contract for the 2018-2019 school year. See Sch. Bd. of Seminole Cnty. v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA 1991); Brooks v. Sch. Bd. of Brevard Cnty., 419 So. 2d 659, 661 (Fla. 5th DCA 1982). DONE AND ENTERED this 13th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 13th day of August, 2019. COPIES FURNISHED: Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Adrian H. Cline, Superintendent The School District of DeSoto County 530 LaSolona Avenue Post Office Drawer 2000 Arcadia, Florida 34265-2000 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether just cause exists to sustain Respondent’s five-day suspension from employment without pay with Petitioner based on the allegations in the Amended Notice of Specific Charges.
Findings Of Fact Petitioner is a duly-constituted district school board charged with the duty to operate, control, and supervise all free public schools within Miami- Dade County, Florida. Article IX, § 4(b), Fla. Const. Gonzalez started volunteering for the School Board approximately 22 years ago. Eventually, after years of volunteering, Gonzalez was offered a paraprofessional position. Gonzalez worked as a paraprofessional at Sylvania Heights Elementary School (“Sylvania”) for the last seven years. During the 2018-2019 school year, Gonzalez was a pre-kindergarten paraprofessional at Sylvania. Gonzalez’s job duties and responsibilities include, but are not limited to, assisting with the children when needed. At all times relevant to the proceeding, Respondent has been employed by the School Board pursuant to a collective bargaining agreement under the United Teachers of Dade (“UTD”). The incident giving rise to this proceeding occurred August 22, 2019. On August 22, 2019, Gonzalez reported to work early around 7:00 a.m. and went to the Sylvania office to help. She was assigned to morning drop-off duty and instructed to assist the parents and students in the drop-off area. That morning, Gonzalez went to pick up pre-kindergarten children at the north entrance of the school. One pre-kindergarten student was upset and crying when his mother dropped him off at the car line. The student continued to cry as he got out of the car. Gonzalez walked the crying student to drop-off classroom number four, after he got out of the car. As Gonzalez walked the crying student to the classroom, the child continued to cry a lot. Gonzalez dropped off the crying student by forcibly placing him into classroom four with a push, and then continuing to go on to assist with another child. During the drop-off period, Janelle Fernandez-Ramos (“Fernandez- Ramos”), a Sylvania teacher, was in front of classroom twelve looking down the hall and saw Gonzalez drop off the child at classroom four. Fernandez- Ramos believes she saw Gonzalez tug the child by the arm. At the time, she shouted to Gonzalez, “don’t push him,” but Gonzalez did not hear her. That same morning, Barbara Soler (“Soler”), a Sylvania teacher, was standing in the middle of the interior hallway with Gonzalez. Soler was turned away and a foot away from Gonzalez’s left when she placed the crying child in classroom four. Soler heard Fernandez-Ramos scream “don’t push him,” and looked right to see the little boy crying standing in the doorway of classroom four. Soler did not see anything happen between Respondent and the little boy. Soler took the crying student to the end of the hallway. At the time Gonzalez dropped off the student, Damaris Medina (“Medina”) was in the classroom where the crying boy was dropped off. She stood approximately seven feet away facing Gonzalez. Medina clearly observed Gonzalez forcefully shove the crying student into her classroom, and Medina watched Gonzalez proceed on immediately after dropping him off. Later that day, Fernandez-Ramos reported to administration that she thought she saw a pushing incident between Gonzalez and a child. Afterwards, Principal Amor Reyes (“Reyes”) called Gonzalez to the office. Reyes informed Gonzalez that it had been reported that Gonzalez had pushed a child. Gonzalez denied the allegations. Hearing At the final hearing, Gonzalez admitted leaving the crying student in drop-off classroom number four and explained that she left immediately thereafter because she needed to continue helping with another child. Gonzalez credibly testified, “I did nothing.” She explained that she was neither frustrated nor upset that day and did not hear Fernandez-Ramos scream at her. Fernandez-Ramos testified that Gonzalez “tugged the child from the arm into the room.” Fernandez-Ramos explained that it was the beginning of the school day, and it was chaotic in the hallway. She also described the layout and explained that between where she was standing in front of classroom twelve and drop-off classroom four, there was a bathroom and two more classrooms. Fernandez-Ramos testified that she was not sure if she saw Gonzalez push the child because “I was further away; I wasn’t sure if that’s what I really saw.” Medina credibly confirmed and testified that Gonzalez shoved the crying boy into the classroom. Medina testified that her response to the incident was to look back at another teacher to see if she saw it. Medina also explained that she believed Gonzalez was either flustered or frustrated. Medina further testified, “I just think that she didn’t realize maybe the force that she used.” She also testified that the student did not fall and was not injured. She further clarified that once the crying student was in the room, Gonzalez kept going to grab another student. Medina repeated at hearing, “I don’t think she realized it.” Respondent has not been the subject of any prior disciplinary action during her employment by the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Miami-Dade County School Board enter a final order issuing a reprimand to Respondent and awarding Respondent back pay for five workdays. DONE AND ENTERED this 23rd day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S JUNE C. MCKINNEY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2021. Michele Lara Jones, Esquire School Board of Miami-Dade County, Florida 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that respondent be found guilty of incompetency and gross insubordination within the meaning of Subsection 231.36(4), Florida Statutes (1987) and that she be dismissed as an employee of the Board. DONE and RECOMMENDED this 10th day of February, 1989, at Tallahassee, Florida. D0NALD R. ALEXANDER 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 10th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4576 Petitioner: 1. Covered in finding of fact 1. 2-23. Covered in finding of fact 3. 24. Covered in finding of fact 4. 25. Covered in finding of fact 6. 26. Covered in finding of fact 7. 27. Covered in finding of fact 8. 28. Covered in finding of fact 9. 29. Covered in finding of fact 10. 30. Covered in finding of fact 11. 31. Covered in finding of fact 12. 32. Covered in finding of fact 13. 33. Covered in finding of fact 14. 34. Covered in finding of fact 15. 35. Covered in finding of fact 16. 36. Covered in finding of fact 17. 37. Covered in finding of fact 5. 38. Covered in finding of fact 18. 39. Covered in finding of fact 19. 40. Covered in finding of fact 20. 41. Covered in finding of fact 21. 42. Covered in finding of fact 22. 43. Covered in finding of fact 23. 44. Covered in finding of fact 24. 45. Covered in finding of fact 25. 46. Covered in finding of fact 26. 47. Covered in finding of fact 27. 48. Covered in finding of fact 28. 49. Covered in finding of fact 29. 50. Covered in finding of fact 30. 51. Covered in finding of fact 31. 52. Covered in finding of fact 32. 53. Covered in finding of fact 33. 54. Covered in finding of fact 34. 55. Covered in finding of fact 35. 56. Covered in finding of fact 36. 57. Covered in finding of fact 37. 58. Covered in finding of fact 38. 59. Covered in finding of fact 39. 60. Covered in finding of fact 40. 61. Covered in finding of fact 41. 62. Covered in finding of fact 42. 63. Covered in finding of fact 43. 64. Covered in finding of fact 44. 65. Covered in finding of fact 45. 66. Covered in finding of fact 46. 67. Covered in finding of fact 47. 68. Covered in finding of fact 48. 69. Covered in finding of fact 49. Covered in numerous findings of fact. Covered in finding of fact 5. Covered in numerous findings of fact. Covered in finding of fact 58. 74.-76. Rejected as being unnecessary. Partially covered in finding of fact 53. The remainder has been rejected as being argument or irrelevant. Rejected as being argument of counsel. COPIES FURNISHED: Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Suite 301 Miami, Florida 33132 H. T. Smith, Esquire 1017 Northwest Ninth Court Miami, Florida 33136 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Karen B. Wilde, Executive Director Education Practices Commission Room 125, Knott Building Tallahassee, Florida 32399
Findings Of Fact Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level. Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto). Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year. Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings. During the 1979-80 school year the normal work day at Palmetto was 7:20 a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day. Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class. On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness. Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto. Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport. Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto. Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress. Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking. Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting. On June 9, 1980, Respondent failed to report for work until 8:15 a.m., 45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness. On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication. Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980- School Year The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable. That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments. In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers. For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week. Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety. Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance. The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued. Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m. On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation. On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback. Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student confusion would be avoided, and a more stimulating and organized presentation achieved. On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982. On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so. Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness. Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself. The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying. In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature." On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency. Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment. Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive. Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office. Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence. Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed. Respondent had simply taken a copy of the placement test and written "French I Final" on it. Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught. Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes. Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized. Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books. On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student. On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas: Accuracy and completeness of required record keeping. Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m. Compliance with district, area, and school level directives and policies. Improved classroom management procedures to insure the following: Classroom organized and neat; Attendance and tardy procedures enforced. Seating charts available and up-to-date. Rules and procedures consistently applied. Teacher-student relationships resulting in mutual respect. Consistent classroom performance resulting in continuous acceptable ratings. Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement. The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years. The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons. Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose. Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons. Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language. Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year. At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist. Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual. Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders. By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them. By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management. Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools." Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year. The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself. Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance. While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years. It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion. Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy. At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That: Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years. DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire The Law Building Suite 204 315 Third Street West Palm Beach, Florida 33401 Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde, Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301
