The Issue Whether just cause exists for the proposed disciplinary action against the Respondent.
Findings Of Fact At all times material to this case, Cheryl McDonough (Respondent) was employed by the Pinellas County School Board (Petitioner) under a professional services contract. The Respondent was initially employed as a teacher by the Petitioner in 1987. On December 11, 1989, the Respondent received a written reprimand from the Assistant Principal at Northeast High School for using poor judgement by displaying anger when dealing with inappropriate student behavior. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Northeast High School until budgetary considerations led to her transfer to Osceola High School. On January 13, 1992, the Respondent received a written reprimand for using poor judgement by displaying anger and using vulgar language when dealing with inappropriate student behavior at Osceola High School. The reprimand was issued by the School District Director of Personnel Services. The Respondent denied the behavior, but waived her right to challenge the allegation. The Respondent taught at Osceola High School until her position was eliminated for fiscal reasons. On February 14, 1994, the Respondent received a written conference summary from Joann Andrews, Principal at Azalea Middle School, where she had become employed. The summary notes that alcohol had been detected on the Respondent's breath during school hours. The Respondent denied the allegation. On April 20, 1994, the Respondent received a written school memorandum from the Assistant Principal at Azalea Middle School for smoking in an inappropriate area on school property. In the summer of 1994, the Respondent was transferred to the district service center where she worked until gaining employment at Lakewood High School in the fall of 1994. By letter from the Superintendent of Pinellas County Schools dated July 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be suspended without pay for ten days. The basis for the recommendation were allegations that the Respondent made disparaging remarks to a student and his mother in front of other students, that the Respondent had the odor of alcohol on her breath, and that the Respondent made derogatory remarks about another teacher to other students and had attempted to disrupt the other teacher's class. On September 13, 1994, the School Board issued a Final Order suspending the Respondent without pay for five days based on the allegations set forth in the July 7 letter. The Final Order was issued pursuant to a settlement agreement reached by the parties. During the 1994-1995 school term, the Respondent was employed as a teacher at Lakewood High School. During a Lakewood faculty meeting on August 23, 1994, the smell of alcohol was detected on the Respondent's breath. During a Lakewood "open house" in September, 1994, the smell of alcohol was detected on the Respondent's breath. During the first semester of the 1994-1995 school term, several students smelled the odor of alcohol on the Respondent's breath. During the first semester of the 1994-1995 school term, the Respondent used vulgar language including "damn," "hell," "shit," "bitch," and "fuck" in the classroom and within the hearing range of students. During the first semester of the 1994-1995 school term, the Respondent used demeaning language towards students in her classroom, calling them "brats" and "dumb," and stating "you are the worst class" and "you will never amount to anything." The Respondent told her sixth period class that she would kill them if she thought she could "get away with it." On more than one occasion, the Respondent became frustrated by the class behavior. She would give the class a "work assignment" and would refuse to teach. There is no credible evidence that the "work assignments" were part of any prepared teaching plan or were otherwise utilized as instructional resources. During the first semester of the 1994-1995 school term, the Respondent physically separated her fourth period class into two groups which she identified as "learners" and "non-learners." A row of empty desks was used to divide the students. During this episode, the Respondent refused to teach the group she called "non-learners." After receiving complaints from students about the division, an official at the school visited the Respondent's class and directed her to reunite the class. By letter from the Superintendent of Pinellas County Schools dated November 7, 1994, the Respondent was advised that the superintendent would recommend to the School Board that the Respondent be dismissed. The basis for the recommendation were allegations as follows: the Respondent used profanity and demeaning language towards students on numerous occasions; the Respondent had alcohol on her breath while at school on two occasions; the Respondent stated to her sixth period class that she would kill them all if she could get away with it; and that the Respondent separated students into two groups within the classroom setting and taught only half the class. The Respondent requested a formal administrative hearing which is the basis for this Recommended Order. At the hearing, the Petitioner's expert witnesses opined that the allegations, if established to be true, were of sufficient seriousness to impair her effectiveness as a teacher.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County School Board enter a Final Order terminating the employment of Cheryl McDonough. DONE and RECOMMENDED this 20th day of June, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6983 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 10. Rejected, correct year is 1994. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected as to use of medication. The greater weight of credible and persuasive evidence fails to establish that the Respondent took the medication at the times when the odor of alcohol was detected on her breath. Immaterial. The evidence fails to establish that the students in the classes taught by the Respondent are responsible for her behavior therein. 6-11. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 14. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. 15-16. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, unnecessary, goes to the credibility of the witnesses which has been determined as set forth herein. Rejected. The Respondent does not recall making the statement so her explanation of her intent is speculative. As to the cited testimony of Ms. Hanes, it is immaterial because the statement is not "in and of itself" the sole event warranting termination. 19-21. Rejected, contrary to the greater weight of credible and persuasive evidence. Rejected, immaterial, no related allegation. Rejected, immaterial Rejected, immaterial. Classroom management "techniques" are not the sole cause warranting termination. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County Post Office Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board Post Office Box 2942 Largo, Florida 34649 Marguerite Robinson, Esquire Kelly & McKee Post Office Box 75638 Tampa, Florida 33675
The Issue Whether the Respondent's teaching certificate should be revoked or disciplined on grounds that she is incompetent to teach or to perform her duties as an employee of the public school system and is unable to effectively meet her responsibili- ties as a classroom instructor, and that she intentionally ex- posed her students to unnecessary embarrassment or disparagement.
Findings Of Fact At all times material hereto the Respondent held Teaching Certificate Number 182937, issued by the Department of Education for the State of Florida. This certificate covers the areas of English and administrative supervision. The Respondent was first employed by the Dade County School Board in 1966. She taught elementary levels first through fourth grades at Shadowlawn and Allapattah Elementary Schools. In 1971, the Respondent transferred to Shenandoah Junior High School, where she taught seventh through ninth grade English until she transferred to Highland Oaks Junior High in 1982. (RE 1) Prior to the Respondent's transfer to Highland Oaks Junior High School she received observations and evaluations which rated her performance in the 3.6 to 4.5 range. The Respondent testified that she received excellent to superior ratings on her evaluation sheets. The school system however considers this to be the ratings of an acceptable or satisfactory teacher. Over 4.6 would be considered excellent or superior. (T538, 623) For the 1982-83 school year through the 1984-85 school year (with the exception of a maternity leave of absence), the Respondent has been employed with the Dade County School Board and assigned to Highland Oaks Junior High School as an English language arts teacher. (T536) The Respondent started the 1982-83 school year late due to a back injury. (T223) Within a week the school began receiving complaints from parents dissatisfied with the Respondent. Parents complained that their children who were Level III students (average - above average ability) were being taught at Level II (below average ability). One of the Respondent's Level III classes through no fault of the Respondent's had been mislabeled as a Level II class. This was corrected immediately. The parents from her other Level III classes which were not mislabeled also complained. The Respondent testified that the dissatisfaction and complaints of the parents all stemmed from the mislabeling of her one class. (T221-223, 548) On October 8, 1982, Assistant Principal Nelson had an informal conference with the Respondent following phone calls and complaints from parents. (T182-183) Mrs. Nelson recommended that the Respondent not eat in the classroom and not use the T.V. for watching soap operas. (SE24F) Mrs. Nelson discussed the need for more rigorous assignments for the Level III students. She asked another teacher, Mrs. Susan Ruskin, who was also the department chairman for language arts, to explain the difference between Level II and Level III students to the Respondent. Mrs. Nelson informed the Respondent that she needed to keep her lesson plans up-to-date. She also needed to specify different lesson objectives for the Level II students as opposed to the Level III students. Mrs. Nelson cautioned the Respondent to watch her language and word choice when speaking to her students. She encouraged the Respondent to call the students' parents when a problem arose. (SE24F) On October 12, 1982, Mrs. Ruskin met with the Respondent to assist her in differentiating between Level II and Level III students. She also discussed discipline, homework, and other curriculum problems with the Respondent. Mrs. Ruskin told the Respondent that she was available if the Respondent needed assistance. The Respondent never asked Mrs. Ruskin for help. (T362, 366-367, SE24) On October 13, 1982, the Respondent's seventh grade Level III English class was formally observed by Assistant Principal Nelson. Mrs. Nelson rated the Respondent unacceptable in the areas of preparation and planning and techniques of in- struction. Mrs. Nelson rated the Respondent unacceptable in preparation and planning because the Respondent did not list more rigorous lesson objectives for the Level III students. The Respondent's lesson objectives were too general and her homework assignments vague. (SE24-B) The Respondent was rated unacceptable in techniques of instruction because she did not adapt the materials to the interest and ability of each student. The Respondent's questioning of her students was not done in depth and lacked important follow-up questions. Her lesson lacked closure: there was no overview or conclusion at the end of the class period. The Respondent's homework assignments did not have any value and the Respondent failed to recognize students for having done or not done their homework. (T188-190) Although Mrs. Nelson rated the Respondent acceptable in the area of classroom management, she was concerned that the Respondent wasted twenty (20) minutes getting the class settled down and on task. Mrs. Nelson recommended that the Respondent establish and enforce classroom rules. (T195) On November 9, 1982, Dr. Mildred B. Augenstein, the principal of Highland Oaks Junior High School did a formal observation of the Respondent. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEI) The Respondent was rated unacceptable in knowledge of subject matter because she neither presented her lesson knowledgeably nor used the appropriate teaching methodology. When asked for the definition of science fiction the Respondent answered incorrectly that it was fiction about science. In giving a spelling test, the Respondent merely read the words off instead of following the accepted and simple procedure of pronouncing the word, using the word in context, and then repeating the word. (T20-23) Dr. Augenstein rated the Respondent unacceptable in classroom management because the class was not in control. Students spoke up at-will without raising their hands for acknowledgment. The class was late in beginning because the children would not settle down. The Respondent appeared unable to keep her students focused on the learning process. Children who were trying to learn were distracted by the unruly children. (T28-30) The Respondent was rated unacceptable in the category of techniques of instruction because the Respondent's instructions to the students were unclear. When the students asked questions for clarification, the Respondent could not adequately answer. Dr. Augenstein felt that the Respondent was deficient in the sequence of her lessons. There was no background, no purpose and no follow through. Instead of facilitating a learning experience the Respondent was merely assigning activities. (T3O-40) Dr. Augenstein used the Teacher Assessment Development System (TADS), the approved assessment instrument (jointly developed by the school system administration and the teachers union and approved by the school board and the state) to assess the Respondent. The TADS is meant to act as a support system to help teachers overcome their deficiencies. A part of the system is the TADS prescription manual. This is a large manual which contains various self- assessment activities and learning materials keyed to various problem areas. (T20-26) On November 24, 1982, Dr. Augenstein presented a prescription to the Respondent to address the deficiencies noted at the observations on October 13, 1982 and November 9, 1982. To remediate weaknesses observed by Mrs. Nelson in preparation and planning, Dr. Augenstein made specific recommendations. These included turning in lesson plans every Friday to Mrs. Nelson. They were to be done separately for the Level II and Level III classes. They were to include the days' objectives, activities, assessment procedures, homework assignments, and the materials and media to be utilized. Dr. Augenstein recommended Mrs. Ruski (she language arts department head) and Mrs. Earle (the librarian) as good source people. (SE1-B) To remediate weaknesses observed in the Respondent's knowledge of subject matter, Dr. Augenstein assigned specific pages and exercises in the TADS prescription manual to be completed by December 8, 1982. The Respondent was also instructed to contact the Teacher Education Center (TEC) and enroll in course offerings of language arts by December 15, 1982. Dr. Augenstein suggested that the Respondent visit other language arts classes prior to December 15, 1982. To remediate the Respondent's weakness in classroom management, Dr. Augenstein recommended that the Respondent establish class rules and enforce them. The Respondent was directed to investigate a course on assertive discipline or teacher effectiveness training and to enroll in a TEC course in classroom management by March of 1983. The Respondent was also directed to review the faculty handbook which contained the rules and regulations of the school. She was directed to work with Assistant Principal Fontana to set up her classroom rules. (SEI, T32-36) To remediate the Respondent's deficiencies in techniques of instruction Dr. Augenstein prescribed resources such as the TADS manual exercises on questioning students, verbal interaction, effective teaching strategies, and instruction sequence. These were to be completed by January 15, 1983. Dr. Augenstein felt the Respondent needed to learn how to ask questions which lead the students into more critical thinking. The Respondent was to demonstrate at least one new teaching approach by January 15, 1983. (SEI) On November 29, 1982, a group of nineteen (19) parents met with Dr. Augenstein to lodge complaints against the Respondent. The parents requested that their children be assigned to another teacher for language arts instruction. The parents complained that the Respondent was not adequately prepared to teach, that she did not address separately and adequately the needs of Level II and Level III students, that she used "atrocious" grammar and poor pronunciation, and that she taught at a level below her students' abilities. The parents were angry that at the end of November their children were still in Chapter I of their textbook. They complained that work assignments were without purpose and often meaningless. Furthermore, the parents complained that the Respondent used inappropriate language in the classroom. The Respondent had called a child "a stupid ignorant person, yelled "shut-up" and had referred to the mother of one of her students as a "whore." The Respondent asked one student (in response to a request for a bathroom pass) whether she was "going to smoke or take quaaludes." The parents were upset that their children were subject to the Respondent's verbal abuse. They also complained that the Respondent had retaliated against students whose parents had made complaints by threatening and ridiculing the students by lowering student conduct grades. (SE2, T50-55) The parents reported a change in their children's atti- tude toward learning and school. Their children hated school and did not want to attend. The parents reported that the Respondent would indiscriminately punish an entire class for the misbehavior of various individuals. The Respondent had handed out detentions to two whole classes and then did not show up herself to supervise the students when they reported for the detention. (SE2-A) The parents reported that the Respondent had watched the soap opera "The Young and the Restless" on the educational T.V. in her classroom. They complained that at an open house for parents the Respondent was late and then allowed her own child to disrupt the program. The Respondent did not abide by school procedures requiring notice to parents of their child's unsatisfactory progress before giving a students an "F" in conduct. One parent related that the Respondent initially would not provide homework assignments for a sick child and then finally, after repeated requests, provided an inadequate and incomplete assignment. (SE2-B) The Respondent's response to the parents' comments and concerns was that the parents and students had "fabricated stories" and told "terrible lies" about her. She testified that the disciplinary problems in her class were because the students conspired against her to prevent her from teaching. She said that the students continually disrupted class and prevented her from teaching. The Respondent stated that she was shocked by the profanity that the students used among themselves. The Respondent denied that she had ever "blasphemed" a child. (SE2-E, T550-553) On November 23, 1982, one parent wrote a letter to Dr. Augenstein complaining of the Respondent's unjust treatment of her daughter, one of the Respondent's students. The parent complained that the Respondent punished all the students for the misbehavior of a few, She also complained of the Respondent's word choice, quoting the Respondent as saying in class,, "I'm not taking any crap from you kids." Her daughter had been so upset by the Respondent's treatment that she became physically ill with stomach cramps. When she requested a bathroom pass the Respondent "gave her a very hard time in front of the whole class." After the student insisted that it was an emergency, the Respondent looked at her watch and told her that she had sixty (60) second to go to the bathroom and was being timed. The parent was very upset at the emotional distress her daughter was suffering at the hands of the Respondent. (T2-1) Two other parents wrote the School on November 23, 1982, complaining that the Respondent's treatment of their particular children, and the students as a whole, was abusive. One parent emphasized that he did not want his child "humiliated or mistreated" by the Respondent. Both parents requested that their children be moved out of the Respondent's classroom. (SE2-J, 2-K) After the November 23, 1982, meeting with parents, Dr. Augenstein continued to receive complaints from other parents. On December 7, 1982, several parents met with Mr. Marvin Weiner, Superintendent of the North Area of Dade County Schools, Mr. Roger Frese, Director, and Principal Augenstein, and presented a petition signed by parents of the Respondent's students. They also presented more letters of complaint against the Respondent. (SE3) On December 13, 1982, Dr. Augenstein wrote the Respon- dent a letter to notify her that she had failed to comply with the prescription of November 24, 1982. The Respondent had failed to turn in lesson Plans as directed and the one plan she did turn in did not differentiate between Level II and Level III students. (SE4) On December 16, 1982, another parent wrote to Dr. Augenstein complaining of her son's treatment in the Respondent's classroom. Her son had been involved in an altercation with another student which developed into a fist fight. The Respondent ignored the incident and refused to separate the two boys stating, "let them both hang themselves back there." The parent sent a note to the Respondent requesting a seat change for her child. The Respondent read the note and did not respond to the parent. The Respondent, after some sarcastic words with the boy, refused to change his seat. The parent then received a poor progress report on her son, which the parent felt was either unjustified or due to her son's seat in the back of a noisy and unruly classroom. The parent felt that her son was not physically safe and secure in the Respondent's classroom. (SES-C) On January 6, 1983, another parent wrote complaining of a distressing phone call with the Respondent. The Respondent had told her that her son never came to class on time, never did his homework, and never passed any tests. The parent did not believe the Respondent since the parent closely monitored her child's homework. The parent went on to relate that she had given her son a note for all of his teachers indicating that he would be absent on a Friday and requesting assignments. The Respondent was the only teacher who did not provide any assignments. The letter written to Dr. Augenstein asked why if her son was doing absolutely nothing had she not received any sort of home progress report. (SE6) Teachers are required by the School Board to send notice to the parents any time their child is doing below average work or exhibiting below average behavior efforts. (T59) On January 6, 1983, the Respondent was again formally observed by Dr. Augenstien. The Respondent was rated unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, assessment techniques and teacher-student relationships. (SE7A, T60-67) Dr. Augenstein felt the Respondent's lesson plans were not being used as an important resource for the structure of her class. The plans were done but not followed. The Respondent also displayed an inadequate grasp of her subject matter language arts. She used the grammatically incorrect sentence, "what hour you went to bed last night." Furthermore, the Respondent provided unclear and inadequate instruction when giving a test on homonyms. Her lesson plans lacked cohesiveness and sequential meaning. There was little if any connection between lessons, leaving the students unable to grasp the overall meaning of what was being studied. (T6O-65) Although the January 6, 1983 observation was done near the end of the first semester, there was no evidence of a structured composition program. The county language arts directives require teachers to assign compositions, collect-the assignment, constructively critique it and then reassign it. This is done to benefit students in developing their writing skills. (T66-68) The atmosphere of the Respondent's classroom was uncomfortable and hostile. The teacher and student interchanges were very cold. (T67) No prescription was given following the January 6, 1983 observation due to the fact that the Respondent had not completed the November 24, 1982 prescription. The Respondent was instructed to continue with the old prescription. (T68) On January 11, 1983, Dr. Augenstein gave the Respondent a listing of courses offered by the Teacher Education Center (TEC) to remediate unacceptable areas noted on November 24, 1982 and January 6, 1983. (SE8) On January 19, 1983, another parent wrote Dr. Augenstein complaining that the Respondent had assigned a book report which was inappropriate for seventh graders. Dr. Augenstein agreed that the book report was too elementary for junior high school, particularly the Level III children. (T70) On February 8, 1983, Dr. Augenstein formally observed the Respondent. Since the January 6, 1983 observation, the Respondent had been reassigned lower performance students. This was done with the hopes that she would be able to handle her students more successfully. The Respondent was rated unacceptable in knowledge of subject matter, classroom management and techniques of instruction. (SEIO, T71) The Respondent mispronounced "architecture" and "denouncement" words that were critical to her lesson. The students were quiet and well behaved as long as Dr. Augenstein was in the room. When the Principal was in the adjoining room, the class became extremely loud. The teacher next door indicated that the Respondent's class was always very loud. The Respondent's lesson lacked closure; rather, it ended when the bell rang. Finally, the Respondent did not adequately answer her students' questions. (T70-73) Although the Respondent had been switched to all Level II students, she exhibited the same problems she had with her other classes. (T74) On February 17, 1983, Assistant Principal Nelson conducted a formal observation of the Respondent's seventh grade, Level II class. She rated the Respondent unacceptable in the areas of classroom management, techniques of instruction and teacher-student relationships. The Respondent's students were very noisy and the Respondent had great difficulty getting them settled. There was an undercurrent of noise throughout the whole class period. There was no focal point to the Respondent's lesson. The lesson should have been reinforced with supportive material such as writing on the chalkboard or an overhead projector to assist the students who were visual rather than auditory learners. Some of the Respondent's students were totally uninvolved with the lesson. A few students monopolized the discussion. The Respondent did not attempt to involve disinterested students. She gave no encouragement to the non- participants. The Respondent had assigned homework and only five students had done it and they received no reinforcement for their effort. The Respondent collected their work but did not grade it or place it in the students' folders. (SE39, T195-198) Assistant Principal Nelson did not assign a new prescription to the Respondent even though the time line on the November 24, 1982 prescription had run out. Instead, she reviewed the areas of the prescription that were incomplete and encouraged the Respondent to complete them, Mrs. Nelson felt that the November 24, 1982 prescription was a good one. (T200) On February 23, 1983, a conference with the Respondent, Dr. Augenstein, Assistant Principal Nelson, and Mrs. Yvonne Perez, a union representative, was held to discuss the status of remediation of observed performance deficiencies and to discuss reemployment of the Respondent. Principal Augenstein stated that she would recommend consideration of a return to annual contract status for the 1983-84 school year. (SE11) On March 2, 1983, the Respondent's seventh grade Level II class was again formally observed by Dr. Augenstein and Mr. Roger Frese, an outside administrator. The Respondent was rated unacceptable in the areas of knowledge of subject matter and techniques of instruction. The Respondent gave her students inadequate instruction. She asked them to read a short story and then write a paragraph describing a character in the story. There was no discussion or instruction on method of character development that could be used to develop the paragraph. Most of the children were unable to complete the assignment. When the children read their paragraphs, many of which were merely a synopsis of the story rather than the assignment, the Respon- dent did not differentiate between acceptable and unacceptable responses. (SE12, SE33A, T78) At the end of the class, the Respondent made a homework assignment but the bell rang before she could adequately discuss or explain the assignment. Again, she did not provide closure on the lesson for the day. (SE33) Throughout the class period the Respondent missed opportunities to clarify the assignment. She did not adequately respond to student's questions and did not ask questions herself. Observers were left in doubt as to whether she, herself, understood the topic and assignment. (T416) As a result of the March 2, 1983 observation, Dr. Augenstein instructed the Respondent to continue with the prescription of November 24, 1982. In addition, the Principal instructed the Respondent to enroll in classes during the summer of 1983 covering the subject matter of (a) critical study and analysis of literature, (b) advanced English grammar, and (c) English rhetoric. (T79, SE13) On May 24, 1983, the Respondent's seventh grade English class was formally observed by Assistant Principal Herman Mills. The Respondent was rated unacceptable in the area of knowledge of subject matter. The subject of the Respondent's lesson was analogy. The sequencing of information disbursed in the lesson was illogical and unclear. (SE26) The Respondent handed out an assignment with a series of words: greater, larger, more bigger, same. The children were to pick out the dissimilar word from the group. The Respondent failed to realize there is no such expression as "more bigger." She should have indicated that a comma between more and bigger was missing. In another series of words: accidental, design, intentional, on purpose, and planned the Respondent incorrectly chose "designed" as the dissimilar word. In other parts of the lesson, the Respondent told the class that Canada was a French speaking country and Korea was a city. (SE26, T258-259) Throughout the 1982-83 school year, administrators at Highland Oaks made it a point to drop into the Respondent's classroom so that their presence would help the Respondent get her class under control. (T267) The Respondent's 1982-83 annual evaluation indicated that Respondent had not remediated the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. It recommended that the Respondent lose her tenure status and be returned to annual contract. The recommendation was not implemented. (SE14, T81) In September 1983, Dr. Augenstein assigned Assistant Principal Mills the task of evaluating the Respondent's progress with the November 24, 1982 prescription. At his first meeting with the Respondent, Dr. Mills discovered that the Respondent had not completed any "required action" on the prescription. At their second meeting, Joan Kaspert of TEC verified that the Respondent had still not completed the "required action" on the prescription. She verified, however, that the Respondent had completed the course "Techniques of Instruction." On September 27, 1983, Dr. Mills instructed the Respondent to obtain "sign- off" on her prescription by September 30, 1983. On October 5, 1983, he determined that the only item signed-off on the pre- scription was the meeting with Assistant Principal Fontana on the subject of classroom management and the already noted course at the TEC. (SE27) On October 19, 1983, Dr. Augenstein again observed the Respondent's seventh grade, Level II English class. She rated the Respondent unacceptable in the areas of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. (SE15) The Respondent was rated unacceptable in preparation and planning because her lesson was planned too sparsely. It did not fill the time allotted. Her homework assignment could not be done by the students because it required a spelling text, which was not a book sent home with the students. The Respondent scheduled a grammar exercise which the class could not do because a large number of the students did not bring the appropriate book to class. (5115) The Respondent was rated unacceptable in the area of subject matter because she could not adequately explain or demonstrate the subject matter of her lesson, the difference between homonyms, and homographs, and homophones. (5115) The Respondent was rated unacceptable in the area of techniques of instruction in that she did not use the chalkboard to reinforce the differences between the spellings, pronunciations, and uses of the words studied. Students were called upon for examples which only furthered the confusion. The Respondent was unable to clarify or rectify the situation. (5115) The Respondent was rated unacceptable in assessment techniques. Her grade book showed grades for only five spelling tests since the beginning of the year. There were no graded compositions or homework assignments in the students' folders. The Respondent did not call for the day's homework assignment. When the Principal asked the class for their homework only six students could produce any and those produced did not seem to be the planned assignment. (SE15) In order to remediate the Respondent's deficiencies observed on October 19, 1983, Dr. Augenstein instructed the Respondent to continue with the November 24, 1982 prescription. She instructed the Respondent to pay special attention to teaching the required content and skills for grade seven literature study, library skills, and composition lessons. She also told the Respondent to enroll in the TEC component "Preparation and Planning." Dr. Augenstein assigned Assistant Principal Mills to monitor the adequacy of the Respondent's weekly plans and the overall accomplishment of course objectives revealed in the plans. She then assigned Ms. Zelda Glazer, Supervisor of Language Arts, to prescribe activities to remediate the Respondent's inadequate knowledge of her subject matter. (SE15) On November 16, 1983, the Respondent's reading lab was observed by Assistant Principal Mills. The Respondent was rated unacceptable in the area of techniques of instruction because her methodology was inappropriate for the reading lab. The purpose of the reading lab is to allow the students an opportunity to work at their own particular reading level. The Respondent was teaching the same lesson to the whole group, entirely missing the point of the reading lab. (SE28) Dr. Mills suggested that the Respondent immediately divide the class into three levels according to diagnostic testing that had been done. He instructed her to provide the requisite materials so that the students could work at their own pace. He also instructed the Respondent to utilize progress sheets so that the progress of the various students could be charted. Dr. Mills assigned a portion of the prescriptive manual to the Respondent and requested that she do all the activities suggested by the manual. Dr. Mills recommended various resource people to the Respondent. He assigned Mrs. Hoffman, a teacher on special assignment, to assist the Respondent in setting up her reading lab. Dr. Mills also arranged for carrels to be placed in the Respondent's reading lab. (SE28) On November 30, 1983, a parental complaint was made against the Respondent for the use of profanity in her classroom. After the matter was investigated it turned out that in chastising a student for profanity, the Respondent had repeated the word several times herself. The Respondent was instructed that repeating the profanity was ill-advised and served no purpose. She was instructed, in the future, to handle such situations using the standard referral procedures. (SE35) A conference for the record was held on December 13, 1983, to discuss the Respondent's progress with her prescription. After reviewing the Respondent's deficiencies and prescription the Respondent was informed that failure to remediate and improve performance to an acceptable rating could have an adverse impact on her employment status. (SE16) On February 14, 1984, the Respondent's ninth grade reading class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of preparation and planning knowledge of subject matter, techniques of instruction and assessment techniques. There was no evidence that the Respondent had applied the readings from the TADS manual that had been prescribed. Dr. Augenstein pointed out to the Respondent' that she had not enrolled in the TEC component on preparation and planning as required by her prescription. The Respondent was rated unacceptable in knowledge of subject matter because she did not understand the difference between assessment activity and programmed instruction. Her students were working on the ninth' grade preparation for taking the state assessment test given in the tenth grade. The Respondent did not orient the students to their assignments. She failed to answer the students' questions and did not review the students' work. The students never knew whether they had answered correctly or not. (T92) The Respondent was rated unacceptable in techniques of instruction because her students spent an entire period doing an activity which was never introduced, explained, monitored or concluded. The Respondent had no follow-up activities planned for the students who finished the assignment early. (T92-94) The Respondent was rated unacceptable in assessment techniques because her grade book showed no grades for the four weeks preceding the observation. The minimum amount of grades expected would be two per week. There was no evidence of graded homework in the students' folders. If the Respondent had become ill it would have been impossible for a substitute teacher to grade her students. (T94-95) In remediation, the Respondent was referred to a memorandum written April 22, 1983, in which Dr. Augenstein had suggested the need for intensive study of subject matter. She was also instructed to refer to the TADS prescription manual as prescribed on November 24, 1982. The principal also referred the Respondent to the prescription given on October 19, 1983. (SE13, 17) On March 6, 1984, the Respondent's language arts class was formally observed by Ms. Zelda Glazer and Dr. Augenstein. The Respondent was rated unacceptable in the areas of knowledge of subject matter and assessment techniques. (SE18) The Respondent was rated unacceptable in knowledge of subject matter because the Respondent was teaching a lesson dealing with parts of speech and she accepted incorrect answers from her students. She identified words as adjectives that were in fact adverbs, verbs and a noun. Furthermore, the Respondent's lesson was improperly sequenced. No background information was provided to the children who consequently did not understand what the Respondent was asking of them. In remediation the Respondent was directed to review with the department chairperson or school administrator the sequencing of a lesson. She was told to prepare a properly sequenced lesson, one which contained the necessary components: review, a drill, and a follow-up application of the skills learned. (T305-310) The Respondent was rated unacceptable in the area of assessment techniques because her students' folders did not contain any compositions. At this time of the year the students should have done between fifteen to twenty (15 to 20) compositions. There was no evidence of any assignments which allowed the students to apply newly learned skills. In remediation the Respondent was instructed to develop a test on a present unit or topic being taught using writing production as one element of assessment. (SE18, T311-313) On March 6, 1984, another conference for the record was held to discuss the Respondent's remediation of performance deficiencies relative to future employment with Dade County Public Schools. After reviewing the Respondent's performance during the 1982-83 and 1983-84 school years, Dr. Augenstein recommended that action be taken toward dismissal for cause. (SE19) In March 1984, the Respondent went on maternity leave. (T97) The 1983-84 year-end evaluation indicated that the Respondent's performance in knowledge of subject matter, techniques of instruction, and assessment techniques was unacceptable. The Respondent was recommended for dismissal. (SE2O, T98-99) The Respondent returned from her maternity leave to Highland Oaks in April 1985. The Respondent received special attention to help acclimate her after almost a year's leave. The Respondent was allowed a full week without the responsibility of a classroom so that she could observe the status of the classes she was assuming and meet with the teacher to discuss the students' progress. Although Dr. Augenstein had never done this before with any other teacher, she wanted to make sure that the Respondent would be adequately prepared. Dr. Mills was also assigned to help the Respondent make the transition. (T99-100, 266-269) On May 2, 1985, the Respondent's eighth grade Level II English class was formally observed by Dr. Augenstein. The Respondent was rated unacceptable in the areas of subject matter and techniques of instruction. (SE21) The Respondent was rated unacceptable in the area of subject matter because she did not appear to grasp the difference between general and specific research sources. She was subsequently unable to clearly explain techniques of research and writing. The students were frustrated and unable to receive clarification from the Respondent. (SE21, T103) The Respondent was rated unacceptable in the area of techniques of instruction because the Respondent was not addressing the needs of her students. Her students were advanced academic learners with a need for inductive and critical thinking approaches. (SE21, T104) In remediation, Dr. Augenstein recommended that the Respondent observe other Level IV English classes and that she do a research project herself. Respondent was also directed to design lessons using strategies for inductive and critical thinking. Dr. Augenstein assigned Mr. Charles Houghton, the North Area project manager for secondary language arts to assist and critique her demonstration lessons. (5521, T013-105) Because the Respondent had recently returned from maternity leave, her assessment techniques were not evaluated. (5521) On May 15, 1985, Mr. Houghton came to Highland Oaks to assist the Respondent. He observed her class working on a large research project. He discovered that the Respondent did not have a clear understanding of the use of bibliography cards, note cards, and research skills. Mr. Houghton told the Respondent that he would gather materials together to help her and return on Friday, May 17, 1985. Mr. Houghton returned on May 17, but the Respondent was absent that day. He left the materials with a note explaining the materials and inviting the Respondent to call him if she needed further assistance. The Respondent never called him. (T242-248) On May 28, 1985, the Respondent's English class was formally observed by assistant Principal Mills. The Respondent was rated unacceptable in the areas of preparation and planning, classroom management, and techniques of instruction. (SE29) The Respondent was rated unacceptable in preparation and planning because although she had prepared lesson plans she did not follow them. There was no lesson presentation and no reference to the lesson objective a review of composition skills. (SE29) The Respondent was rated unacceptable in classroom management because the class never settled down so that a lesson could be presented. (SE29) The Respondent was rated unacceptable in techniques of instruction because, among other things, there was no systematic method demonstrated for monitoring the students' performance on the learning objectives. The Respondent still did not use media to assist her presentation. There was no lesson presented. (SE29) For remediation, Dr. Mills met with the Respondent and urged her to follow Dr. Augenstein's prescription. He gave her more prescriptive activities which were similar to those already assigned. (SE29, T266-268) On June 6, 1085, the Respondent was observed by Assistant Principal Nelson and Ms. Glazer. The Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. (5E25) Mrs. Nelson observed little improvement on the part of the Respondent. She did not seem to be benefiting from the prescription and TADS system. (T210) The Respondent was rated unacceptable in preparation and planning because she did not follow her lesson plan. The poem which had been assigned reading for that day was inappropriate for the lesson objective: metaphors and similes. The Respondent was rated unacceptable in the area of knowledge of subject matter because not only was she using a poem that did not contain metaphors and similes, but she could not even give an example of a metaphor, when asked by a student. The Respondent referred to the cockney dialect of the poem as a southern dialect. Consequently she interpreted the word again" as dialect for aging and completely misinterpreted a whole line of the poem. (5E25) The Respondent was rated unacceptable in classroom management in that it took her ten minutes to call the roll, after which there was still socializing among the students. Several students came in late and no questions were asked of them. (SE25) The Respondent was rated unacceptable in techniques of instruction because she accepted correct and incorrect responses without comments or suggestions. No background was given on Rudyard Kipling (the poet being studied) or on the form of the poem, the ballad. The Respondent ignored all the appropriate topics raised by the poem and, instead, interjected the terms "metaphor" and "simile "haphazardly. (5E25) The Respondent was rated unacceptable in teacher- student relationships because she ignored the students' responsibilities. She neither praised nor questioned them. Furthermore, she ignored the non-participating students. (SE25) In remediation, the Respondent was referred to the prescription of May 2, 1985 and May 28, 1985. She was also directed to carefully review her lessons so that she would he prepared for students' questions and be ready with appropriate examples. The Respondent was also directed to specific exercises in the TADS manual dealing with feedback, interaction with stu- dents, and recognizing correct and incorrect responses. (SE25, T328-330) The Respondent's 1984-85 annual evaluation rated her unacceptable in the areas of preparation and planning, knowl- edge of subject matter, classroom management, techniques of instruction, and teacher-student relationships. Dr. Augenstein noted that the Respondent's unacceptable performance--documented in previous years--continued since her return from leave. She again recommended that the Respondent be dismissed for cause. (SE22) On May 30, 1985, a conference for the record was held to discuss the Respondent's end-of-the-year evaluation. The principal again recommended that dismissal for cause be initiat- ed. (SE23B) The Respondent's final exams distributed in June 1985, indicated that she still had no understanding of what constituted an objective type of exam. (T27, SE30-32) Dr. Augenstein informally observed the Respondent's classroom many times over the years, as she did with all the teachers. Her informal observations substantiated the general deficiencies noted ire formal observations. Problems were continually observed in lesson planning, subject matter, methods and materials. (T106-107) Dr. Augenstein testified that she did not think that the Respondent put out even a minimal effort to overcome her deficiencies. (T108) All the administrators and educators who observed the Respondent's classroom agreed that the Respondent did not adequately grasp her area of specialization, the English language arts. All agreed that she lacked the minimum skills in both content and methodology of English language arts. (T16, 255, 304, 424, 461) Over the three year period, the Respondent was given various prescriptions to encourage and help her in remediation. The Respondent followed and completed only a tenth of the prescriptions given to her. (T170) Dr. Patrick Gray, Assistant Superintendent for the Dade County School Board's Office of Professional Standards, testified that--based on his educational background; his personal evaluation of the Respondent's file, his review of the evidence offered at the Respondent's school board hearing in the Division of Administrative Hearings' Case No. 85-3223; his review of the exhibits introduced on behalf of the Petitioner; his knowledge of the required teaching behaviors for teachers, including the state of the art and research; and the Florida teaching competencies which are expected of every Florida teacher--the Respondent's performance consistently failed to meet the standards of performance of the State of Florida. Dr. Gray recommended that the State permanently revoke the Respondent's teaching license. On September 4, 1985, the Respondent was suspended from her employment with the Dade County School Board. The School Board instituted proceedings to dismiss the Respondent from employment. On June 4, 1986, the School Board of Dade County entered its Final Order upholding the dismissal of the Respondent. (PE77)
Recommendation Based on the foregoing, it is RECOMMENDED that the Respondent's Teaching Certificate Number 182937 be REVOKED. DONE and ORDERED this 30th day of September, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. 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 30th day of September, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1144 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-100. Adopted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT 1-8. Approved. 9. Approved, as modified to reflect that Respondent did not attend any of the TDS training sessions conducted by Dr. Gray. 10-13. Approved. 14. Approved, as modified to reflect that she was given the correct textbooks soon after parents complained about her performance. 15-21. Approved. 22. Approved as modified to reflect that a secretary made a transposing error on the form so that those areas where Respondent performed satisfactorily were marked unsatisfactory, and vice versa. 23-34. Approved. 35. Approved, but modified to reflect that, nevertheless, Respondent continued to perform below minimal standards and her remediation efforts were not effective. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Laverne Elizabeth Reaves 1430 N.W. 90th Street Miami, Florida 33147
The Issue As to DOAH Case No. 12-2859TTS, whether Rhea Cohen (Respondent), a classroom teacher, committed the acts alleged in the Amended Administrative Complaint filed by Robert Runcie, as Superintendent of the Broward County Schools (Superintendent) and, if so, the discipline that should be imposed against Respondent’s employment. As to DOAH Case No. 13-0704PL, whether Respondent committed the acts alleged in the Administrative Complaint filed by Pam Stewart, as Commissioner of Education (Commissioner) and, if so, the discipline that should be imposed against Respondent’s teacher’s certificate.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida; and Robert Runcie was Superintendent of Schools. At all times material hereto, the Commissioner has been the head of the state agency responsible for certifying and regulating public school teachers in the State of Florida; and Pam Stewart was the Commissioner. Respondent has been employed by the School Board since 2002 and holds a Professional Services Contract, issued in accordance with section 1012.33(3)(a). During the time relevant to this proceeding, Respondent was an ESE classroom teacher at Crystal Lake. During the 2007-2008 school year, Respondent was employed as an ESE classroom teacher at Atlantic West Elementary School teaching students on the autism spectrum. During that school year, the Education Practices Commission (EPC) reprimanded Respondent for sleeping in class while students were present and for using restraints inappropriately to control or manage autistic and exceptional student education students. The EPC imposed an administrative fine against her in the amount of $500.00. Thereafter, Respondent transferred to Crystal Lake. Respondent taught ESE students at Crystal Lake for the 2010-2011 and 2011-2012 school years. The events at issue in this proceeding occurred during either the 2010-2011 school year or the 2011-2012 school year. Exact dates were available for some of the events, but unavailable for other events. Respondent’s classroom at Crystal Lake for those two school years was divided into two halves, separated by tables and rolling chalkboards that did not form a solid wall. For the 2010-2011 school year, Respondent taught her class of ESE students on one side of the divided classroom and a Ms. Knighton taught on the other side. For the 2011-2012 school year Respondent shared the classroom with Mr. Montalbano. On one side of the classroom was Respondent’s class, consisting of 11 ESE students. On the other side of the room was Mr. Montalbano’s class, consisting of seven ESE students. Mr. Montalbano’s class was smaller because his class functioned at a lower level than Respondent’s class. On October 4, 2011, student J., a non-verbal, wheel chair-bound boy, and student D., a boy with Down’s syndrome, were sitting next to each other in Respondent’s classroom. Student D. did something to irritate student J. Student J. balled up his fist as if to strike student D. Respondent, in front of the entire class, Lisa Phillips (an ESE paraprofessional), and Ms. Sorren, made the following statement: “So is the cripple [student J.] going to beat up the retard [student D.]”./4 Other students in the classroom laughed at student J. and student D. Student J.’s wheelchair is motorized. After making the statement quoted above, Respondent attempted to move student J. into a corner. When student J. moved the wheelchair away from the corner, Respondent unplugged the wheelchair’s battery and made the statement: “Now who has the power. I am in control, not you.” The other students laughed at student J. Respondent then moved student J. to the corner./5 On October 11, 2011, Respondent sent student J. to Mr. Montalbano’s classroom and commented that “he’s too much of a bother.” One day at dismissal, student J. asked Respondent three or four times to be taken to the bathroom. Respondent did not respond to student J. The bus arrived, but the driver refused to accept student J. because of his request to go to the toilet. Mr. Montalbano, who overheard student J.’s requests to Respondent, took over the responsibility for student J. Respondent became frustrated while helping student J. with the computer after student J. got the wires to the headphones tangled. Respondent ripped the headphones out of the back of the computer leaving the male connection in the female end of the computer. In a private discussion with Mr. Montalbano, Respondent referred to student D. as being a “moron.” Respondent sent her 11 students to Mr. Montalbano’s side of the classroom, which housed ten computers. There was a disturbance because one student did not have a computer. Respondent came to Mr. Montalbano’s side of the classroom and told student D. to give up his computer. Student D.’s first language is Bulgarian. When student D. muttered in protest, Respondent yelled at him to express himself in English. When student D. left the computer, his place was quickly taken by another student. Student D. began to cry. Respondent walked back to her side of the classroom, leaving student D. crying in Mr. Montalbano’s side of the classroom. On October 11, 2011, student Mi., an 11 year-old female on the autism spectrum, was playing with a puzzle during free time when she spotted an open computer. Student Mi. left the puzzle pieces out to go to the computer. Respondent noted the puzzle on the table and yelled out, “Who left this puzzle out?” Student Mi. hid under a table in reaction to Respondent’s statement. Respondent came to the table, roughly grabbed student Mi., and pulled her out from under the table. Respondent led student Mi. to the table with the puzzle and yelled in front of the class: “I don’t know what your mother teaches you at home, but you’re a little, spoiled brat and I am not going to clean up after you.” Respondent then took student Mi.’s doll away from her and put her in time out for the remainder of the day, approximately 30 minutes. On another occasion, Respondent had the other members of the class imitate student Mi., after student Mi. had engaged in self-stimulatory behavior. The other students laughed at student Mi. In October 2011, Ms. Hudson discovered Respondent and student Mi. in Mr. Montalbano’s half of the classroom with the lights dimmed. Ms. Hudson thought student Mi. had been crying. Ms. Hudson reported the incident to her principal, but she did not question Respondent, nor did Respondent volunteer to Ms. Hudson an explanation of the circumstances that resulted in Respondent being in the darkened classroom with student Mi. At the formal hearing, Respondent explained that student Mi. had run into traffic while waiting to be transported from school. Respondent testified, credibly, that she was trying to calm down student Mi./6 Ms. Sorren testified, credibly, that during the short time she was in Respondent’s classroom (approximately three school days), she heard Respondent address the students as morons, monkeys, jungle monkeys, and animals. That testimony was consistent with the other testimony as to the language used by Respondent in her classroom. Petitioners established that Respondent repeatedly yelled at her students to “shut up,” described a student’s behavior as being “stupid,” and called at least one student a “brat.” Student Mo., a female on the autism spectrum, was new to Respondent’s class. On an unidentified date, Respondent directed student Mo. to go to timeout. After student Mo. refused to go to timeout, Respondent shoved student Mo. into the timeout area. During the 2010-2011 school year, Respondent became upset with student C., a female, and ordered her out of her classroom. When student C. talked back to Respondent, Respondent threw student C.’s backpack and her shoes over the chalkboard that divided the classroom. Ms. Knighton and her class were in the part of the classroom into which Respondent threw the objects. Student C. became very upset. Respondent became upset with Ma., a male student. Ma. had a snack on his desk. Respondent knocked the snack to the floor and smashed it with her foot. Petitioners established that Respondent engaged in a pattern of misconduct. Respondent’s effectiveness in the school system has been impaired.
Recommendation The following recommendations are based on the foregoing findings of fact and conclusions of law: As to Case No. 12-2859TTS, it is RECOMMENDED that the School Board of Broward County, Florida, enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of Rhea Cohen’s employment and terminate that employment. As to Case No. 13-0704PL, it is RECOMMENDED that the Education Practices Commission enter a final order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order suspend Rhea Cohen’s educator’s certificate for a period of five years, to be followed by probation for three years with conditions to be set by the Education Practices Commission. DONE AND ENTERED this 12th day of July, 2013, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 12th day of July, 2013.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employee, on the basis that Respondent failed to satisfactorily and efficiently perform his assigned job duties, and/or he committed gross insubordination and willful neglect of duties.
Findings Of Fact The allegations against Respondent are set forth in the Petition for Termination of Employment (the Petition), dated August 7, 2008, and filed with DOAH on September 12, 2008. Respondent was employed as a custodian with the Lee County School Board (Petitioner) since January 12, 2000. He currently is assigned to Riverdale High School. The position of custodian is an educational support employee. Carl Steven Adams (Adams) is assistant principal for administration at Riverdale High School. He was responsible for all matters relating to the school maintenance, including supervision of custodians. Adams prepared Respondent's annual performance assessment for each of the 2005-2006, 2006-2007, and 2007-2008 school years. Adams scored Respondent's performance in the 2005-2006 year as achieving an effective level of performance, the highest possible score, in all 28 areas targeted for assessment. For the 2006-2007 and 2007-2008 school years, Respondent worked the evening shift and was assigned to clean the gym, the boys' locker rooms, the band room, the chorus room, three portable classrooms, the agricultural hallway, the football restrooms, and a portion of the cafeteria. During the 2007-2008 school year, after Respondent requested assistance, he was relieved of cleaning the boys' locker rooms and was assigned eight additional portable classrooms. For the 2006-2007 school year, Adams scored Respondent as achieving an effective level of performance in 18 of the 28 areas targeted for assessment, including "completes requests and directives in a timely manner," "begins tasks with minimum of direction," "maintains continuous workflow," and "takes advantage of available training opportunities." Respondent received a lower score of "focus for development/feedback" in ten areas targeted for assessment. Those areas that needed improvement included "effectively plans, schedules and controls work"; "completes a reasonable amount of work in a timely manner"; and "seeks to improve quality and efficiency of work." Adams testified that he did not score Respondent as performing at an "unacceptable level of performance observed," because he did not have any written documentation to that effect. On September 4, 2007, Respondent was issued a "letter of warning regarding allegations of incompetence in reference to your job," which "directed [him] to pay closer attention to [his] assigned job duties, ask for assistance when needed, and ask for instructions and guidance in defining [his] job duties." No evidence of documented performance deficiencies relating to Respondent was offered in evidence for the first semester of the 2007-2008 school year. The Petition and Joint Pre-hearing Stipulation listed only alleged performance deficiencies commencing on or after January 7, 2008. On January 7, 2008, Respondent was charged with failing to perform his duties as instructed after allegedly being instructed by his supervisor to clean the restrooms at the football field. Respondent's immediate supervisors were the building supervisor and head custodian, neither of whom testified at the hearing. Respondent testified that he indeed had cleaned the restrooms twice that day, but the attendees at a swimming meet on that date used the facilities and "messed" them up. Respondent's testimony was credible. On January 10, 2008, Respondent is alleged to have been instructed to clean the cafeteria, in preparation for an open house that evening, and failed to perform the duties as instructed. Upon entering the main building after cleaning his assigned portable classrooms, Respondent was notified of the open house. Respondent testified that he and the other custodians were informed of the open house only one hour before the commencement of the event. The lunch tables had been pushed into his designated area so the other custodians could complete cleaning their respective sections of the cafeteria. He therefore had to wait for the removal of the tables before he could attend to his section. He hurriedly attempted to clean his area, but was not afforded sufficient time to properly clean the area before the entry of the public. On January 25, 2008, Respondent was charged with failing to perform his duties as instructed after the school athletic director allegedly instructed Respondent to clean the gymnasium, locker rooms, and lobby restrooms in preparation for a wrestling tournament. As with the building supervisor and head custodian, the athletic director did not testify at the hearing. Respondent, however, testified that he had cleaned the gym, locker rooms, and lobby restrooms. However, participants and others at a dance and/or choir event remained past the end of Respondent's shift at 11:00 p.m. and left the lobby and restrooms a mess. This resulted in the restrooms not being presentable to the public. On March 18, 2008, Respondent was charged with having failed to clean one of his regularly assigned areas: the agricultural hallway. Respondent testified that it is difficult to keep this hallway clean, because it has a door at the end that opens to the outdoors and leaves and debris blow into the hallway when there is a draft. The hallway also is located by the varsity athletes' locker room; foot traffic from the locker room to and from the playing fields can contribute to the hallway appearing messy even after its been cleaned. Respondent testified that he was only responsible for the tiled section of the hallway and that he regularly cleaned it. Adams conceded that he was only told of Respondent's alleged failure to clean the hallway and did not independently verify the charge. Adams also acknowledged that March 18, 2008, was a Tuesday night. Tuesday nights are usually very active at the school, during that time of year. It was entirely possible that Respondent had cleaned the hallway and that foot traffic from the varsity athletes' locker room could have caused it to become dirty. On March 19, 2008, Adams personally found the restrooms on the south end of the football field "too disgusting to be opened for the lacrosse game." Respondent testified that these restrooms are supposed to remain locked and be cleaned only as needed. However, periodically people access them and leave the facilities dirty. Respondent discussed the problem with Adams, and he was assured the restrooms would remain locked. On March 19, 2008, Respondent had not been informed that there was a scheduled lacrosse game, and, thus, was unaware of the need to check on the condition of the restrooms. Adams did not know whether anyone had, in fact, notified Respondent of the scheduled lacrosse game. On March 24, 2008, Respondent received a letter of reprimand from Adams recounting the foregoing alleged performance deficiencies on January 7, 10, and 25; and March 18 and 19, 2008. The following day, Adams presented Respondent with his 2007-2008 annual performance assessment, scoring Respondent as unacceptable in four areas targeted for assessment. It included: "begins tasks with minimum direction," "seeks to improve quality and efficiency of work," and "inconsistently practiced" in ten areas targeted for assessment. It also included: "completes a reasonable amount of work in a timely manner," "achieves expected results with few errors," and "completes requests and directives in a timely manner." The letter of reprimand, issued the previous day, furnished the requisite documentation for Adams to give Respondent a poor performance assessment for the year. Adams' testified that Respondent's letter of reprimand, delivered to Respondent one day before the negative performance assessment, was "coincidental." The letter of reprimand Respondent received March 24, 2008, cautioned Respondent that "[f]rom this point forward, you are to follow all directives given to you by your supervisors. Failure to comply with these directives will result in disciplinary action up to and including dismissal." Adams failed to contemporaneously notify Respondent of the now documented performance deficiencies, thus, preventing Respondent a timely opportunity to rebut the charges or remediate his performance. In the second semester of the 2007-2008 school year, Nancy Bell (Bell) sent Adams a total of six e-mails complaining about Respondent's work performance in her room, two of which were on successive days regarding the same complaint and three of which were in the course of one week in March. Bell directed her e-mail complaints about Respondent's performance solely to Adams and did not notify Respondent or his immediate supervisors about her complaints. Bell testified that she was instructed by Adams to follow this protocol. On April 24, 2008, Respondent was provided a letter of reprimand dated April 23, 2008, that outlined the following issues with his performance: Bell's classroom was not cleaned; Respondent was sleeping in the custodial room on April 16, 2008, at 9:15 a.m.; and Respondent's job performance has been below the standards required by the school and Petitioner. In this letter of reprimand, Adams wrote that he had "received six e-mails from one of the teachers in a classroom in your area of responsibility that describe unclean conditions and unsatisfactory work being done by you." Adams previously instructed the teachers at the school that if they had any concerns regarding the cleanliness of their room, they were to e-mail him. Bell is the only teacher to register a complaint with Adams about Respondent's work performance in her classroom, even though Respondent had the responsibility for cleaning three classrooms initially during the 2007-2008 school year and eight additional classrooms when he was relieved of cleaning the boys' locker rooms. Adams never spoke with Respondent about Bell's complaints until he presented the letter to Respondent on April 24, 2008. Although two of Bell's complaints predated his delivery of the first letter of reprimand to Respondent, Adams neglected to reference either of those complaints in the initial letter of reprimand. At the time, Adams simply referred Bell's complaints to the building supervisor and head custodian and relied on those individuals to address the matter with Respondent. Adams does not know when, or if, they did so; nor does he know whether Respondent was ever shown the e-mails prior to April 24, 2008, and, thus, had an opportunity to address her concerns. The evidence presented by Respondent satisfactorily explained the complaints received by Adams in regard to Respondent's performance of his duties on February 12, March 24, March 26, March 28, and April 10, 2008. The April 23, 2008, letter of reprimand also accused Respondent of having been discovered by his supervisor sleeping at 9:15 a.m. during spring break in 2008 when he was working daytime hours. Petitioner did not present any evidence to substantiate this charge, and Respondent vehemently denied ever sleeping on the job. Petitioner failed to prove this charge. There were occasions when upwards of three custodians would be absent from work. The custodians reporting for duty would have to clean the absent custodians' areas. Consequently, they would have less time to devote to their regularly assigned areas. Petitioner did not establish whether the custodial staff was always at full strength on the occasions when Respondent is accused of performing less than an adequate job of cleaning. Petitioner's investigator, Craig Baker (Baker), conducted a tour of the areas assigned to Respondent. He testified that he performed his inspection on Tuesday, May 20, 2008, at approximately 5:30 a.m., when the school was first opened and there had not been any activity in the school following the conclusion of the custodians' shift from the night before. He documented Respondent's alleged performance deficiencies with a digital camera. Due to his unfamiliarity with the operation of the camera, the photographs were of poor quality, and Petitioner elected not to introduce them into evidence. Baker detailed the results of Respondent's assigned work area. Baker testified that there was loose dirt and paper along the baseboard in the gym and that "it appeared that it had not been swept or cleaned from the evening or the day before." In the restrooms adjacent to the gym he noted "there was one toilet that had unflushed feces. It had not been flushed from the night before." Baker testified that, although the band room "looked adequately clean," he observed that in Bell's classroom there was "paper underneath one of the desks," "old gum stuck on the back of a desk," and "dust along the area adjacent to a computer that had not been dusted in some time, it appeared to me." Baker testified that, in the lunchroom, he observed "[s]everal trash cans that had not been emptied from the day before. They had trash in it, paper from food goods, things like that." Finally, Baker testified that he saw, "primarily in the hallway where the lockers were, one particular area there was [sic] loose screws where a maintenance worker had been doing some work that had not been cleaned for several hours, students could trip on them." Based on this inspection, Baker concluded that Respondent's work performance had not improved from the year before. However, Baker admitted on cross-examination that, based on the date stamped on the photographs he took while conducting his tour of Respondent's areas, the actual date of his inspection was Monday, May 19, 2008, at 5:30 a.m. He acknowledged that Respondent's last work shift preceeding the inspection was Friday, May 16, 2008. Baker did not know what athletic events or activities occurred at the school over the weekend. He admitted that the feces in the toilet could have been placed there after Respondent completed his shift on Friday and before Baker conducted his tour. He was unable to state whether the other deficiencies he noted were the consequence of people being in the building or activities occurring over the weekend. Charles Drayton, a custodian at the school for six or seven years, testified that, during the 2007-2008 school year, he stood in as acting head custodian when Floyd Davison, the head custodian, was absent. He explained that when he was acting head custodian, and it was necessary to clean the area of another custodian who was sick or absent, he would have all the custodians assemble at the absent custodian's assigned area and clean it en masse before returning to their individual job assignments. He testified that on those occasions Respondent did a good job and that he performed with the same level of professionalism as every other custodian. Charles Drayton's testimony was credible. Respondent was assigned to clean the large areas in the school that had a lot of foot traffic. In regard to the difficulties Respondent experienced cleaning the boys' locker rooms, it is not uncommon for a custodian to clean the locker room, complete his shift, and leave only to have the athletes return from a game and "make a mess of it" resulting in his supervisor accusing him of not cleaning the area. There are a number of athletic events and other activities at the school that extend past the 11:00 p.m. termination of the custodians' shift. For both the 2006-2007 and 2007-2008 school years, Respondent was responsible for cleaning the agricultural hallway, cleaning the bleachers, as well as cleaning the locker rooms. These are high foot traffic areas. With athletic events not concluding until 10:00 p.m. or later, and athletes returning from away games following the conclusion of Respondent's shift, Respondent would be pressed for time to thoroughly clean those areas or would have already cleaned them only to have them appear to be messy, even after they have been cleaned. Since Respondent commenced working for Petitioner, he received one probationary performance assessment and nine annual performance assessments. With the exception of his last two years at Riverdale High School, i.e., the 2006-2007 and 2007-2008 school years and one year at Franklin Park Elementary School in the 2004-2005 school year, Respondent scored at an "effective level of performance" in all areas targeted for assessment. There was no probable cause for disciplinary action against Respondent for alleged incompetence in the 2004-2005 school year at Franklin Park Elementary School. Petitioner rescinded Respondent's dismissal and placed Respondent at Riverdale High School for the 2005-2006 school year. In Respondent's probationary and 1999-2000 annual performance assessments, Respondent's supervisor wrote favorable comments in the comments section regarding Respondent's performance. In his succeeding three years at Bayshore Elementary, his supervisor also wrote favorable comments on his 2000-2001, 2001-2002, and 2002-2003 annual assessments. Two classroom teachers at Riverdale High School, Michael Skocik and Christy Danielson, testified that they were very satisfied with Respondent's work performance during the 2006-2007 and 2007-2008 school years, and that he kept their classrooms clean. The evidence is insufficient to constitute just cause to terminate Respondent's employment. Petitioner did not call as witnesses Respondent's supervisors, the building supervisor, and head custodian, nor did it call the athletic director, to refute Respondent's testimony that he complied with their directives and satisfactorily performed his assigned job duties within the constraints presented by the unique nature of his job assignment. The greater weight of evidence established that Respondent satisfactorily and efficiently performed the large majority of his assigned job duties and that Respondent had a reasonable explanation and justification for those of his admitted deficiencies. Petitioner did not prove by a preponderance of evidence its charge that Respondent committed gross insubordination and willful neglect of duties, as those terms are defined in Florida Administrative Code Rule 6B-4.009(4), by continuously refusing to perform the custodial tasks assigned to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Petition for Termination of Employment, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits to September 10, 2008. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 February, 2009. COPIES FURNISHED: James W. Browder, Ed.D. Superintendent of Schools The School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966-1012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert J. Coleman, Esquire Coleman & Coleman Post Office Box 2089 Fort Myers, Florida 33902-2089 Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard Fort Myers, Florida 33966
The Issue The issues are whether Respondent has violated Sections 231.28(1)(b), 231.28(1)(f), and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida teaching certificate number 335745. He is certified to teach Social Science Education through June 30, 1998. The Duval County School District employed Respondent as a teacher at Highlands Middle School for the 1993-1994 school year. Respondent taught geography during his first period class at the middle school. On or about February 10, 1994, a student in Respondent's classroom, C. L., was talking to a student in an adjacent classroom through a hole in the wall. Respondent lost his temper and threw a geography book at C. L., hitting him in the head. Respondent's testimony that the book slipped from his hand is not persuasive. After the book-throwing incident, the Duval County School District transferred Respondent from Highlands Middle School to the district's book depository. Two months later, the school district transferred Respondent to Joseph Stilwell Middle School for the remainder of the 1993-1994 school year. The principal of Highlands Middle School, George Reynolds, prepared Respondent's annual evaluation on March 1, 1994. Mr. Reynolds found that Respondent's performance was unsatisfactory in the following two areas: (a) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (b) shows sensitivity to student needs by maintaining positive school environment. These ratings resulted in a deduction of four points and an overall "unsatisfactory" evaluation. Mr. Reynolds, however, inadvertently marked Respondent's overall evaluation as "satisfactory." The Duval County School District transferred Respondent to Landon Middle School for the 1994-1995 school year. Within weeks, it became apparent that Respondent had difficulty controlling the students in his classes. In September 1994, Respondent called one of his student's a "trashy kid." During a subsequent parent-teacher conference, Respondent referred to his students as "bad" kids. As to classroom control, he stated that "a teacher can only do so much" and that "his hands were tied." After the parent-teacher conference, the Landon Middle School principal, Elaine Mann, had a conference with Respondent. During this conference, Respondent stated again that he had trouble maintaining classroom control because he had a number of bad students. Ms. Mann and Respondent agreed that she would observe his second period class on October 3, 1994. Ms. Mann observed Respondent's sixth grade World History class on the agreed date. Respondent's performance during this observation was unsatisfactory in the following ways: (a) Respondent allowed students to spend too much time on one activity; (b) Respondent's lesson did not include a way to evaluate classwork; (c) Respondent's lesson did not include an introduction or summary; (d) Respondent's lecture was disjointed; and (e) Respondent's stated objectives were not appropriate. In a memorandum dated October 6, 1994, Ms. Mann described Respondent's strengths and weaknesses and included recommendations to improve his teaching techniques. Ms. Mann conducted a conference with Respondent on October 10, 1994, to discuss her observations and recommendations. Ms. Mann observed Respondent's eight grade U.S. History class on November 14, 1994. For the second time, Ms. Mann found that Respondent's performance was unsatisfactory. A memorandum dated November 16, 1994, lists the following weaknesses: (a) Respondent did not require students to be in class on time; (b) Respondent wasted instructional time; (c) Respondent permitted students to sleep in class; (d) Respondent did not introduce the lesson or use a handout appropriately; (e) Respondent's lecture/discussion lacked organization; (f) Respondent turned his back to one side of the room for most of the period; and (g) Respondent only interacted with six students. Ms. Mann provided Respondent with a written memorandum dated November 16, 1994, setting forth his strengths, weaknesses, and recommendations for improvement. She advised Respondent that she would request assistance for him from the Professional Development office. Ms. Mann wanted that office to establish a support team to work on a "success plan" to improve Respondent's performance. Ms. Mann set a goal for Respondent to achieve a satisfactory evaluation by March 15, 1995. On January 3, 1995, Ms. Mann observed Respondent's class informally. She found that the students were not under control. Their behavior towards Respondent was disrespectful. Ms. Mann and Respondent signed a written success plan on January 11, 1995. The plan included strategies to meet the following objectives: (a) demonstrate effective classroom management skills; and (b) demonstrate effective presentation of subject matter. A member of the support team, Marlene Rasmussen, observed Respondent on January 19, 1995 and January 23, 1995. The focus of the observations was Domain Four, presentation of subject matter. Based on her observations, Ms. Rasmussen recommended that Domain One, lesson planning, be added to Respondent's success plan. Ms. Rasmussen also recommended that Respondent attend a workshop to learn effective teaching behaviors. Ms. Mann arranged for Respondent to attend this three-day workshop. On January 13, 1995, Ms. Mann received a complaint that Respondent used the word "shit" in addressing a student in his class. Ms. Mann admonished Respondent regarding his inappropriate language in a written memorandum dated January 30, 1997. Peggy Clark, a member of the in-service support cadre, provided assistance to Respondent beginning in February 1995. She worked with Respondent in the area of lesson planning. Ms. Clark observed Respondent's classroom performance on two occasions. She conducted two post-observation conferences with Respondent. Ms. Clark was unable to complete her duties in assisting Respondent because of his absences. Louise Peaks, the eight-grade house administrator, was a member of Respondent's success team. As a resource person, she assisted him, on an informal basis, by providing him with feedback from his student disciplinary referrals. She counseled him during casual conversations in the hallway and in his classroom. Respondent never implemented any of the advice or suggestions that Ms. Peaks gave him. Ms. Peaks received complaints from Respondent's fellow teachers concerning his failure to follow school procedures. He allowed his students to come and go as they pleased. His classroom was very disorganized. Pat Barker, the sixth-grade house administrator, was a member of Respondent's success team. She observed him on March 10, 1995, and March 13, 1995. Ms. Barker found that Respondent's students were disorganized. She saw no evidence of classroom management. According to Ms. Barker, Respondent appeared to be unaware whether certain students were in or out of the room. Ms. Barker observed that a majority of the students were uninvolved in Respondent's lesson. Some of the students were asleep. Respondent was not alert to student misbehavior. Ms. Mann issued her annual evaluation of Respondent on March 15, 1995. She found that his over-all performance was unsatisfactory. Specifically, Respondent's performance was unsatisfactory in the following areas: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. On May 26, 1995, Ms. Mann received a written complaint from the teacher whose classroom was located above Respondent's classroom. The complaint concerned disturbing noise from Respondent's room on May 25 and 26, 1995, days during which standardized tests were being administered. Following receipt of Ms. Mann's evaluation, Respondent requested a transfer to another school for the 1995/1996 school year. In response to this request, the Duval County School District transferred Respondent to Paxon Middle School. On August 24, 1995, Respondent's new principal, Quentin Messer, held a private conference with Respondent to develop a plan to improve Respondent's teaching performance. That same day, a written success plan was signed by Respondent and Mr. Messer. The objective of the plan was to provide Respondent with assistance in demonstrating effective classroom management skills and effective presentation of subject matter. The success plan identified support team members, outlined strategies to meet the objectives, and set timelines for completion of proposed activities. Ms. Arnette Smith was a cadre assistant and trainer from the Professional Development office during the 1995/1996 school year. On September 18, 1995, Ms. Smith received a request to assist Respondent in improving his lesson planning skills. Ms. Smith met with Respondent and Dr. Ben Titus, assistant principal, on September 22, 1995. During this meeting, Ms. Smith reviewed Respondent's success plan and arranged a time for an informal observation in Respondent's classroom. In a subsequent meeting, Respondent and Ms. Smith discussed the ways she could assist him with his lesson plans. Respondent expressed a negative attitude toward his students during his conversations with Ms. Smith. He told her that his students did not have values and did not want to learn. Ms. Smith observed Respondent informally on October 11, 1995. After the observation, Ms. Smith discussed her suggestions with Respondent and provided him with a copy of her notes, which outlined specific recommendations. Ms. Smith offered to demonstrate the planning and teaching methods that Respondent could use to enhance his classroom effectiveness. Principal Messer observed Respondent formally and informally through out the 1995/1996 school year. Most of his informal observations were in response to complaints from students, parents, and other teachers. On October 25, 1995, Mr. Messer conducted his first formal observation of Respondent. Mr. Messer found that Respondent's performance was at the lowest or next to the lowest level in 17 out of 24 criteria. Mr. Messer found that Respondent's lesson plan, consisting of one word, was inadequate. Respondent wasted valuable class time collecting papers, sharpening pencils, and arguing with students. Mr. Messer noted that there was no rapport between Respondents and his students. Ms. Smith, personnel development cadre assistant, met with Respondent again on November 7, 1995. The purpose of the meeting was to prepare for her observation of Respondent's class at a later time. Ms. Smith and Respondent reviewed the planning- data form in detail. She advised Respondent to have the form complete prior to the planned observation on November 9, 1995. After observing Respondent on November 9, 1995, Ms. Smith found that Respondent needed improvement in thirteen of twenty-four indicators. Respondent had not adopted or followed any of Ms. Smith's suggestions. He was inadequately prepared and had not completed the planning documents. Ms. Patricia Downs, house administrator of the sixth grade, provided Respondent with assistance in the 1995/1996 school year. She conducted formal and informal observations of Respondent in November 1995, in the area of classroom management, Domain Two. Classroom management was an area of concern due to the number of complaints received from students, parents, and faculty regarding the noise and confusion in Respondent's classroom. Ms. Downs observed Respondent's sixth grade social studies class on November 13, 1995. During that observation, Respondent exhibited a total of 10 effective behaviors and 44 ineffective behaviors. For example, she observed that students were sleeping, working off-task, and otherwise not participating in the lesson, while Respondent proceeded as if those students were not present. The following day, November 14, 1995, Ms. Downs reviewed her findings with Respondent. She discussed specific incidences showing Respondent's lack of classroom control and made suggestions to improve his classroom management. On December 4, 1995, Mr. Messer made a written suggestion that Respondent contact the Duval County School Board's Wellness Center because he appeared nervous and disoriented. On February 6, 1996, Mr. Messer conducted his second formal observation of Respondent. Mr. Messer concluded that Respondent's performance was only marginally satisfactory. That same day, Mr. Messer advised Respondent that if his performance was not elevated to an acceptable level by March 15, 1996, he would be given an unsatisfactory evaluation for the 1995/1996 school year. Mr. Messer continued to observe Respondent informally after February 6, 1996. Based on these informal observations, Mr. Messer concluded that Respondent had not improved over the course of the school year in any of his areas of deficiency. Principal Messer asked Dr. Titus, assistant principal of Paxon Middle School, to assist Respondent with his success plan. Dr. Titus coordinated cadre support for Respondent. On March 7, 1996, Dr. Titus observed Respondent in his classroom. When Dr. Titus arrived for the observation, three students in the hall said that Respondent would not let them enter the room. Respondent explained that he closed the door because the students were late. During his observation, Dr. Titus noted a lack of order, confusion, and negative interaction between Respondent and his students. A majority of the students were off-task because Respondent had no apparent system for classroom management. Respondent's performance was very unsatisfactory. Ms. Downs, sixth-grade house administrator, observed Respondent for the second time on March 8, 1996. She again concluded that Respondent's performance was unsatisfactory. Ms. Downs reviewed her observations with Respondent on March 13, 1996. During that meeting, Respondent told Ms. Downs that he considered the school to be a "cesspool." He also stated that the students were impossible to teach. On March 29, 1996, Mr. Messer issued an overall unsatisfactory annual evaluation for Respondent. This decision was based on the results of Mr. Messer's formal and informal observations and the input he received from Dr. Titus, Ms. Smith, and Ms. Downs. Pursuant to a resignation agreement with the Duval County School District, Respondent resigned his employment effective June 12, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's teaching certificate for one year. DONE AND ENTERED this 1st day of June, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1998. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Francis W. Keefe 6176 Fordham Circle Jacksonville, Florida 32217 Kathleen M. Richards, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-2500 Jerry W. Whitmore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School. Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Ellen L. Leesfield, Esquire 2929 SW Third Avenue, Fifth Floor Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132
The Issue The issue posed for decision herein is whether or not the Respondent, Alfreda Grady, should be terminated from her employment as an instructional employee with the Broward County school system.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and the entire record compiled herein, I hereby make the following relevant findings of fact. By its six count Petition for Dismissal, Petitioner, through the person of its Superintendent of Schools, William T. McFatter, seeks to uphold its recommendation that Respondent, Alfreda Grady, be dismissed from employment in the Broward County school system. Respondent, Alfreda Grady, was an instructional employee at the School Board of Broward County until she was suspended with pay from her duties at the close of the workday on January 27, 1983. Respondent holds a continuing contract of employment and holds teaching certificates in both guidance and elementary education. During the course of the 1982-83 school year, Respondent was assigned to the position of guidance counselor at Attucks Middle School. This assignment was made by Mr. Thomas Wilson, Assistant to the south area Superintendent of the Broward County School Board. Ms. Grady was later assigned to teach sixth grade orientation and social studies. On January 27, 1983, Respondent was placed on emergency suspension and a PETITION FOR DISMISSAL from the Broward County school system was filed based on charges of incompetency, misconduct in office, immorality and gross insubordination. A request was made for a formal evidentiary hearing pursuant to Chapter 120.57(1), Florida Statutes. The matter was thereafter assigned to the undersigned hearing officer to conduct the instant hearing. On August 19, 1982, Respondent was assigned the position of guidance counselor at Attucks Middle School. Prior to this assignment, the position of guidance counselor had been assigned to Ms. Ricci Mandell, a teacher previously employed at Attucks. This assignment was made by Taft Green, principal at Attucks Middle School. Both Ms. Grady and Ms. Mandell were retained in the Guidance Department. Approximately two weeks into the school year, Respondent was assigned to teach one sixth grade orientation class. It is not unusual for a teacher to be assigned teaching duties in more than one subject area. (TR Volume 1, p. 193) By letter dated September 1, 1982, Mr. Green informed Respondent that she would begin teaching the orientation class on September 7, 1982. Respondent was also informed by Mr. Green that Ms. Friedman, a reading teacher at Attucks, would supply the necessary material and a course syllabus. Ms. Friedman had previously taught the orientation course during the 1981-82 school year. Respondent was advised that principal Green and the other instructional employees were available to assist her, as needed. Although Respondent never contacted Ms. Friedman for either assistance or to obtain the material, Ms. Friedman supplied the Respondent with a variety of materials to be used in teaching the orientation course including the course guide for middle school orientation and two instructional television books. (TR Volume 1, p. 166) Respondent refused to teach the orientation course. The class was used as either a study hall or the students watched programs such as "The Today Show" and "Good Morning America." On September 15, 1982, Respondent was assigned to teach two sixth grade social studies classes. A memo reflecting this assignment was sent both to Respondent and Ms. Mandell, dividing the guidance position between them and assigning them each three classes. (Petitioner's Exhibit P) Mr. Green divided the counselor duties between Respondent and Ms. Mandell based on budgetary considerations. That is, Attucks could not afford three guidance counselors and instead of terminating one instructional employee, the guidance counselor assignments were divided. (TP Volume 1, pp. 204 - 205) On November 3, 1982, Mr. Green began, via a memo, to change Respondent from a guidance position to a teaching position reciting in the memo that the change was based on a report from Rod Sasse, an educational guidance specialist for the Petitioner. Mr. Sasse conducted a study of the Attucks Guidance Department and determined that the Department needed to be restructured. He determined that two full-time counselors were more effective than one full-time and two part- time guidance counselors. Thus, Respondent was assigned a teaching position without any counseling duties. Respondent has refused to perform her assigned duties by Mr. Taft Green citing, inter alia, that the course materials provided her were inadequate or incomplete; that she was not educationally trained and therefore unqualified to teach the assigned duties; that she received no help or assistance from other instructional employees at Attucks and that she was not interested in taking the needed steps to either become qualified or otherwise competent to teach the assigned social studies and orientation classes. Prior to her November 10, 1982 assignment by principal Taft Green, Respondent was afforded one (1) week to prepare for the assigned classes. Additionally, she was given two TDA's (temporary duty assignments) to prepare for the social studies classes. Additionally, Respondent received a course syllabus and other material from other faculty and staff and offers of help from supervisory employees. (Testimony of Green; Carole Fischer, Social Studies Department Head; Mark Thomas, author of the course guide for middle school orientation and Dr. Benjamin Stephenson, Associate Superintendent for Personnel) Respondent made repeated statements, oral and written, to students, other instructional employees, supervisors, principal Green and the press evidencing her lack of interest in performing the assigned duties of teaching social studies and/or orientation. Respondent also cited as one of the reasons of her inability to teach the assigned classes was due to the fact that her students were not functioning at the same level of achievement and therefore it was impossible for her to teach students who are functioning at different progress levels. It is hereby found that it is indeed normal for students to function at varying progress levels and that teachers who are at all interested in performing the duties of an instructional employee, readily adjust to the varying progress levels of students and welcome the challenge of such an adjustment. As stated, Respondent repeatedly refused to perform her assigned duties as an instructional employee for the orientation and social studies classes. Based on this refusal to teach, Respondent assigned 148 out of 150 students a grade of incomplete or "I." Respondent was repeatedly directed to provide grades for her students by principal Green including written demands on January 19, 20, 21 and 25, 1983. On the last two demands on January 21 and 25, 1983, Respondent was further advised that her failure to assign grades to students would be regarded as gross insubordination. Respondent would not and, in fact, refused to teach her students any of the subject areas to which she was assigned by principal Taft Green. A typical day spent in the Respondent's classroom consisted primarily of the students either performing independent work which usually was in the form of preparing for other classes or doing homework which was assigned by other instructional staff or in the case of the orientation class, students would watch programs such as "Good Morning America" and "The Today Show." Respondent performed some minimal teaching including map and globe assignments. However, in the normal day, Respondent would permit students to perform either independent work or repeatedly view film strips. As a result of such repetition, students became bored. A number of Respondent's students expressed a desire to learn skills in the social studies classes which they were attending. It is also found that the Respondent's effectiveness as a teacher has been severely damaged due to the wide notoriety that this case has received, the public statements and/or admissions by the Respondent denoting her lack of interest in teaching the assigned classes and the expressed concern of other staff and parents concerned about entrusting their children to Respondent's class in view of her admitted lack of care and disregard for the educational and social welfare of the students in her class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Petitioner, School Board of Broward County, enter a Final Order dismissing the Respondent, Alfreda Grady, from employment with the Broward County school system. RECOMMENDED this 17th day of November, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1983.
Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
The Issue The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.
Findings Of Fact On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3 During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5 In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the student refused to comply with Petitioner's request and reported the alleged incident to school officials. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio administrative proceeding or the instant administrative hearing to establish this charge. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained: During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together. According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect." Petitioner then testified that "I don't really recall . . . that's what I vaguely recall." Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident. As a result of the October 7, 2000, incident, Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched Ms. Williams, and committed an act of violence against Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001." Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7 The testimony of Ms. Harris, Ms. Williams, Ms. Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9 Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs the student to conceal the fact that he engaged in such conduct. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and Ms. Williams, occurred at school. The incident involving Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2006.
