The Issue The issue is whether the Education Practices Commission should impose a penalty or sanctions against Respondent’s teaching certificate pursuant to Sections 1012.795 and 1012.796, Florida Statutes, and Florida Administrative Code Rule 6B-1.006, based upon the allegations contained in the Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator’s Certificate No. 602255, which encompasses Elementary Education and English to Speakers of Other Languages, which is valid through June 30, 2003. After beginning her teaching career working in its Reading Lab, Respondent began teaching a fourth-grade class at Ft. Pierce Elementary School. After a year in that position, she taught for approximately nine years at Bayshore Elementary School, also teaching fourth grade, then transferred to St. Lucie Elementary School, where she also taught a fourth-grade class her first year. St. Lucie Elementary School was a new school, which had opened in August, 1996. Respondent taught third grade during the 1998-1999 and 1999-2000 school years at St. Lucie Elementary School after being reassigned from her fourth-grade class. Dr. Jane Hartman is, and was, at all material times, principal of the school. Among her many duties, Dr. Hartman evaluates the instructional staff and attempts to be in the various classrooms frequently. Dr. Hartman provides feedback and support to her teachers in a variety of ways, including staff development days, written suggestions to teachers, and grade chair meetings. Teachers at St. Lucie Elementary School are given a copy of the school handbook, which is discussed at the beginning of each year. In the event Dr. Hartman receives a parent complaint, she first contacts the staff member to discuss the issues. Thereafter, Dr. Hartman arranges a face-to-face conference with the parent, administration, and the teacher, to ensure that everyone is “comfortable that the relationship has mended” so they can “move forward.” During Respondent’s first year at St. Lucie Elementary School, 1997-1998, Dr. Hartman received some complaints from parents concerning Respondent’s dealings with the parents of her students and with various classroom management issues. Dr. Hartman engaged in informal counseling with Respondent concerning these complaints, and observed some changes on Respondent’s part, although not enough. Dr. Hartman and other members of her administration frequently sent notes to Respondent concerning recommendations and criticisms about her classroom performance. Dr. Hartman reassigned Respondent to a third-grade class at the end of her first year teaching at St. Lucie Elementary School, believing that Respondent would have more success with a smaller number of students who, being younger, might be easier to teach. The average age of a fourth-grade student is nine years old. During her career as an educator, Dr. Hartman has both taught fourth graders and had the opportunity to observe fourth graders in the classroom. Fourth graders are normally at that age where they love their teacher; are able to read and write; are creative; and are ready to learn about their world. Dr. Hartman believed Respondent’s class to be an average class of students, a “sweet class in that they not only cared what was said to them personally,” but also, “what was said to their friend, what was said to someone who wasn’t as strong academically.” Respondent referred to many of the students in the class as having behavior problems. Ms. Drew, a music teacher at St. Lucie Elementary School, taught many of Respondent’s students the year they were in her class. Ms. Drew found these students not to be “bad,” but to be “children who had some bad experiences.” Ms. Drew “felt bad” for many of the students who were in Respondent’s class and agreed to teach a fifth-grade class the next year to help many of Respondent’s former fourth graders. Petitioner’s witnesses at hearing consisted primarily of students from Respondent’s fourth-grade class and their parents. The students complained that Respondent had belittled them in her class and made their fourth-grade year a miserable experience. The former students related comments having been made that they were “slow,” “stupid,” “babies,” “stupid idiots,” and that Respondent was “smarter and had more education than all your parents put together.” The students testified that Respondent yelled at them, “was mean,” told them to “shut up,” embarrassed them in front of the other students, and threatened to tape record them so that their parents could hear how much they misbehaved in class. One student was embarrassed in front of the class when Respondent insisted she call her mother on a speakerphone to address why she had not returned her paperwork and money for a candy sale. Another student reported to his mother that Respondent, an African-American herself, told him he was “acting like a stupid nigger.” Many of the students testified that, while they had previously enjoyed school, after being in Respondent’s class, their self-esteem had been shattered by Respondent’s behavior in class. St. Lucie Elementary School followed “Loving Discipline A to Z,” a guide for teachers to follow regarding discipline. Respondent failed to follow these guidelines. Respondent would punish the entire class for the actions of a few students by making them write sentences that, in some cases, were grammatically incorrect. Respondent would also punish the entire class for the actions of a few students by not allowing them to have recess or go to music or art classes outside the regular classroom. Respondent, for another form of punishment, would not choose “Lynx Leaders,” an award given to students who performed well. Respondent enforced inconsistent policies concerning use of the restroom. Although she testified that students could use the restroom whenever they needed as long as it was vacant, at times she refused to allow students to use the restroom, resulting in at least one student wetting his pants in class on more than one occasion and being ridiculed by other students in the class. The allegations by the students against Respondent were made at the time the students were in her class, both verbally to their parents and in writing to their parents and school officials, as well as in testimony at hearing, six years after they had been in Respondent’s fourth-grade class. Respondent’s disciplinary measures were too harsh for fourth graders. Assistant Principal Linda Applebee testified that Respondent had problems following directions. Respondent failed to participate in a bus evacuation drill in February of 1998, and failed to perform a required book check at the end of a nine-weeks' period, which resulted in the school not billing parents for missing books and therefore having to pay for books that were not returned. Dr. Hartman testified that “chaos” reigned in Respondent’s classroom, and that there had never been a teacher, either before or after Respondent, who had such difficulty maintaining classroom management. Dr. Hartman suggested that Respondent observe other classrooms where her students experienced physical education, art, or music, and did not experience the same disciplinary problems. Respondent never took Dr. Hartman’s suggestion. Respondent admitted to some chaos in her classroom when she described one day when a student was simulating a sex act on the floor while another one scribbled on her desk with a marker. Respondent blamed these problems on “poor parenting skills” rather than on her inability to control the classroom. Respondent had a policy of calling a student’s parents when a student refused to follow a warning to behave, but she failed to follow her own procedure. Dr. Hartman believed that Respondent did not follow school procedures and had difficulties with classroom management. Dr. Hartman repeatedly gave Respondent advice and support, but Respondent failed to change her behavior. For example, Dr. Hartman met with Respondent on September 7, 1998, to discuss the resources available at the school for dealing with classroom management. Dr. Hartman informed Respondent that 1) Level I infractions should be handled by the individual staff member involved, rather than immediately calling the front office, which Respondent often did; 2) Discussions about a student should not be held in front of the student or the class; 3) Students should be given supplies needed to participate in class; 4) Students need to be told what to do; 5) Students should be praised for doing what is expected; 6) Students should not be placed in the planning room for time out; and 7) Respondent should point out only positive behaviors of the students. Dr. Hartman explained that violations of these items as set forth in her letter dated September 7, 1998, would have a negative effect on her competence to perform as a teacher. Respondent refused to attend monthly faculty meetings on a regular basis. Further, when she did attend, Respondent often had to be called and reminded to attend, then arrived late and refused to sit with her team members, sometimes even typing at a computer during the meeting. Faculty meetings are important because they help the administration achieve its goals of having a school act with consistency and a common vision and purpose. Respondent sometimes failed to cooperate with parents and the administration in the scheduling and conducting of parent-teacher conferences. At least one family had to involve both Dr. Hartman and the School Board in order to hold a meeting with Respondent. Often, the meetings proceeded badly with Respondent taking little or no responsibility for the issues expressed by the parents. In January of 1998, an incident occurred involving Respondent at a basketball game in St. Lucie County between Lincoln Park Academy and its cross-town rival. Respondent’s daughter, along with one of her friends, was arrested at the game because they refused to listen to law enforcement officers who attempted to remove them from a confrontation with other students who had congregated outside the over-filled gym where the game was taking place. When Respondent arrived at the rowdy scene outside the basketball game, she began to argue with the two law enforcement officers who were arresting Respondent’s daughter and her friend. Respondent used racial epithets directed at the two officers and engaged in disorderly conduct. She called Officer Terry Miller, an African-American, an “Uncle Tom” which he took to mean an African-American person who takes the side of white people rather than people of his own color. She called Lieutenant David Trimm, who is white, a “cracker,” a racial slur used to describe a white person who is prejudiced against African-Americans. In addition to the racial epithets, Respondent attempted to incite the crowd by yelling about the Ku Klux Klan getting away with whatever they want, and that no arrests would have been made had the crowd been predominately white rather than African-American. Based upon Respondent’s actions, both Officer Miller and Lieutenant Trimm feared for their safety. Both officers had dealt with arrests of minors in the past and with their parents who become upset when they see their sons or daughters in handcuffs, but Respondent’s behavior was “totally different” from what they had experienced in the past. Officer Miller “was shocked” at Respondent’s behavior, especially in light of the fact that she was a teacher, and Lieutenant Trimm would have arrested her had he known at the time she was a teacher. Respondent’s behavior at the basketball game was unprofessional and so racially charged that a riot could have resulted from her actions. Dr. Hartman did not reprimand Respondent at the time of the incidents giving rise to this hearing because she believed Respondent could actually improve and change her behavior. After Respondent failed to take Dr. Hartman’s and Ms. Applebee’s advice, Dr. Hartman decided to change Respondent’s position so that she taught third-grade students, in hopes that “a little bit younger would soften her a bit.” Dr. Hartman’s reassignment of Respondent to a third- grade class for the following school year necessitated that her classroom be moved. Some of Respondent’s classroom items had been moved at the beginning of the 1999-2000 school year, and Respondent attempted to take compensatory leave at the start of the year, but failed to follow the proper procedures which included seeking prior permission from Dr. Hartman. Dr. Hartman called Respondent into her office to discuss Respondent’s failure to follow school policies concerning attendance and attitude at faculty meetings and unauthorized use of compensatory time. Respondent did not respond to Dr. Hartman’s questions, but handed her a letter of resignation, accompanied by an anonymous letter criticizing her teaching abilities that had been left in Respondent’s school mail slot. Respondent claims to have written the resignation letter the night before in response to the anonymous letter that she considered to be “harassment.” The substance of the letter, purportedly from a “very concerned parent,” was that Respondent “will always be remembered as a miserable, nasty, uncaring, cruel teacher that does not deserve to teach anyone, especially children.” Respondent further claims that she wrote the letter of resignation in an attempt to be transferred from St. Lucie Elementary to another school. Respondent is aware that, in order to be considered for a transfer to another school, she must first interview with that school and be offered a position. No other school had offered Respondent a position at the time she handed her resignation letter to Dr. Hartman. Therefore, Dr. Hartman could not have considered her request for a transfer. Initially, Dr. Hartman only read the first part of the resignation letter since, once she realized she was going to be without a teacher on the first day of school, she acted quickly to inform her assistant, Ms. Applebee, so that she could immediately seek a substitute to start the next morning. Once Ms. Applebee read the letter, she perceived it to be a threat to the safety of the students and faculty of St. Lucie Elementary School. Dr. Hartman did not read the entire letter until 6:00 p.m., on August 19, 1999, the first day of school because she was busy with all of the special challenges the first day of school presents every year. Once she read the letter, however, Dr. Hartman had “extreme concerns” about the following paragraph: After considering my remaining options, I decided to depart from this position because of YOU and the lack of professionalism displayed on your behalf. I have been subjective [sic] to an extraordinary amount of harassment every [sic] since I’ve been under your supervision. This included lack of administrative support, extreme and undue stress, your trifling and vindictive ways, and last but not least, your prejudice and racist attitude toward students, minorities, and me. These are conditions in [sic] which no one should be subjective [sic] in the workplace. In fact, it seems to almost define going postal. (Emphasis added) Dr. Hartman believed the “going postal” language meant that Respondent might come in and shoot people. Assistant Principal Applebee was concerned for their safety, after she read the letter. Ms. Jane Grinstead, Executive Director of School Operations for Zone 2, St. Lucie County School District, thought the letter constituted a threat. Even Respondent admitted that her husband warned her that “somebody might take your letter offensively,” yet she still gave it to Dr. Hartman. The letter came to Dr. Hartman at a time that was close to the shootings at Columbine High School in Colorado. Dr. Hartman was trained to be on alert for the type of traits that might be exhibited by a person who would do violence at a school. Those traits include antisocial behavior and failure to follow procedures, two traits exhibited by Respondent during her tenure at St. Lucie Elementary School. Further concern arose because this was a time when some United States Postal workers had assaulted, shot and killed their supervisors and some innocent bystanders. As a result of her concerns, Dr. Hartman contacted Ms. Grinstead who put her in touch with Dave Morris, head of security for the St. Lucie County School District. Mr. Morris arranged for a school resource officer to follow Dr. Hartman around the next school day, August 20, 1999. At the end of the day, Assistant School Superintendent, Russell Anderson, spoke with Respondent and informed her that if she wanted to resign, she must leave the school premises, and the resignation would be accepted at the next School Board meeting. During the meeting with Respondent, Mr. Anderson discussed her claims of harassment with her and offered her the chance to file a formal complaint for harassment against Dr. Hartman. Also, Respondent’s union representative, Ms. Clara Cook, informed her that she could file a formal complaint, yet Respondent declined to do so. Based upon his safety concerns, Mr. Anderson asked the school resource officer, Mr. McGee, to escort Respondent off campus. He then drafted a Notice of Temporary Duty Assignment which informed Respondent that she is “further prohibited from being on any school district property.” Respondent requested to rescind her resignation on August 23, 1999. On August 24, 1999, Respondent’s letter of resignation was rescinded and she was suspended without pay by the St. Lucie County School District. On October 6, 1999, Respondent was suspended without pay and notified that the St. Lucie County School District would recommend that she be terminated at the next School Board meeting based on her violation of School Board policies. After a hearing, Respondent was terminated by the St. Lucie County School District as a result of the contents of the resignation letter. As a result of the incidents culminating in her dismissal, Respondent’s effectiveness as a teacher has been called seriously into question. Dr. Hartman explained that an effective teacher is one who “cares about children, cares about their learning, knows how to communicate, [is] open to learning themselves at all times, [is] very caring, compassionate, willing to work with others, realizing the accountability and responsibility that we hold each day, celebrating. You have to be very intelligent because you’re constantly thinking on your feet, planning and preparing and organizing.” Assistant Principal Applebee believes that Respondent did not like the children she taught because she noticed Respondent was not always nice to them; she complained about them; and the children believed they had no one in the classroom who cared about them. Ms. Grinstead, a school district administrator with 35 years of experience, believes that an effective teacher is one who is 1) sensitive; 2) caring toward children; 3) communicates well with peers; 4) communicates well with parents and students; and 5) can give suggestions on ways the parents and the school can work together for the children. Other teachers at St. Lucie Elementary School “rallied to assist” Respondent’s class. Ms. Drew decided to teach fifth grade so she could teach the same students who had been in Respondent’s fourth-grade class. Dr. Hartman would not reemploy Respondent. Assistant Superintendent Anderson would not recommend Respondent for re-employment in the St. Lucie County School District based on the seriousness of the charges. Assistant Principal Applebee would never re-employ Respondent because she did not believe Respondent to be an effective teacher. Officer Miller believes that Respondent should not be reemployed as a teacher by the St. Lucie County School District. Each of Respondent’s former students and their parents does not believe that Respondent should be employed as a teacher anywhere. Respondent takes no responsibility for any of the allegations made against her. She believes that she did nothing wrong, but that the problems complained of by the administrative staff, law enforcement personnel, her former students, and their parents are the result of either discrimination, harassment, or manipulative children and their parents who refuse to take responsibility for their children’s behavior. Despite all the complaints lodged against Respondent by her former students and their parents, her former principal, assistant principal, school district administrators, and law enforcement officers, Respondent received satisfactory evaluations from Dr. Hartman for the period in question in this case. Respondent currently works for the Head Start program, caring for three- and four-year-old children. Before the Administrative Complaint was filed in this case, a substantially similar Administrative Complaint (the same except for the statutory citations which were renumbered by the Florida Legislature) was filed and scheduled for hearing before DOAH. The case proceeded to hearing and the prior Administrative Law Judge opened the record. Petitioner then attempted to amend the Administrative Complaint to correct statutory citations that had been renumbered by the Legislature. Respondent objected to Petitioner’s ore tenus motion to amend. When the Administrative Law Judge announced that he would not rule on the motion to amend at the hearing, Petitioner announced that it was voluntarily dismissing the Administrative Complaint without prejudice and would thereafter file a new complaint with the revised statute numbers. Respondent asserted at that time that she believed Petitioner’s voluntary dismissal would be dispositive of the claims and allegations in it; that she did not agree to a voluntary dismissal; and that she was prepared to proceed. Nonetheless, Petitioner voluntarily dismissed the Administrative Complaint, and DOAH entered an Order Closing File.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s teaching certificate be revoked for a period of 10 years, with reinstatement subject to the provisions of Subsection 1012.795(4)(b), Florida Statutes. DONE AND ENTERED this 11th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2004. COPIES FURNISHED: Kelly B. Holbrook, Esquire Broad and Cassel 100 North Tampa Street, Suite 3500 Post Office Box 3310 Tampa, Florida 33602-3310 Mark F. Kelly, Esquire Kelly & McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact During the first semester of the 1981-1982 school year, David Michael Wolfe was absent 66 times from his homeroom class. His absences from other classes, each of which, like homeroom, met 90 times during first semester, ranged from 56 to 87. From January 28, 1982, till March 5, 1982, while he was still enrolled at North Miami Junior High School, David went still less frequently to class. Not one of these absences was excused. Mrs. Wolfe is very cooperative with the school authorities, but her daughter is absent more than David. David, who was born June 20, 1968, was referred to the Department of Health and Rehabilitative Services because of his truancy. On December 8, 1981, David and four other students missed their fourth period class(es) but were apprehended on or near school grounds by William G. Murray, an assistant principal at North Miami Junior High School. Mr. Murray spanked each boy, and sent them to class. Like the others, David never went to class that afternoon. In addition to corporal punishment and a court referral, the school administration employed both "indoor suspension" and "outdoor suspension," in an effort to improve David's attendance. Nothing worked. David was not disruptive in the sense of disturbing the few classes he did attend, according to Mr. Murray. He did, however, for the first semester of the 1981-1982 school year, fail all six subjects, also getting an "F" in conduct.
Recommendation It is, accordingly, RECOMMENDED: That petitioner assign David Michael Wolfe to the Jan Mann Opportunity School-North. DONE AND ENTERED this 9th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the clerk of the Division of Administrative Hearings this 9th day of June, 1982. COPIES FURNISHED: Mrs. Bonnie Wolfe 2260 Northeast 135 Lane North Miami, Florida 33181 Michael Niemand, Esquire Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Leonard M. Britton Superintendent Dade County School Board 1410 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact The Respondent, Robert David Ferris, holds Teacher's Certificate No. 172775 issued by the State of Florida, Department of Education, on May 11, 1977. This certificate covers the areas of elementary education, administration/supervision, and junior college. In 1983 the Respondent was employed as an elementary school teacher, and taught at Jefferson Davis Middle School in Palm Beach County until his termination which was effective on September 19, 1983. Some time between June 1 and September 16, 1983, the Respondent unlawfully killed his wife, Kathleen Ferris, by strangulation. The Respondent was charged with first degree murder, and was convicted of this crime by the Circuit Court in Palm Beach County, Florida. He was sentenced to life imprisonment. This conviction is presently being appealed. The Respondent was also charged with the murder of his son, George Ferris, but this charge was dismissed subsequent to the Respondent's conviction for murder of his wife. There was extensive news coverage of the arrest of the Respondent, of the Respondent's trial, and of his eventual conviction on the charge of murder. These events appeared in the newspaper and on the television continuously. During the investigation stage, police officers were in the Jefferson Davis Middle School constantly, making inquiries of both students and teachers about the Respondent. As a result, the students were adversely affected, and the morale of the teachers was low. The nature of the Respondent's act of killing his wife, together with the awareness of the incident on the part of the students, parents, staff and the community due to the notoriety it received, so impaired the Respondent's effectiveness as a teacher and employee of the school board, that the Respondent could not be re-employed in any capacity in the Palm Beach County public schools.
Recommendation Based on he foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Teacher's Certificate No. 172775 held by the Respondent' Robert David Ferris. THIS RECOMMENDED ORDER ENTERED this 26th day of June, 1987, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1987. COPIES FURNISHED: Charles T. Whitelock, Esquire 1311 S.E. Second Avenue Ft. Lauderdale, Florida 33301 Robert David Ferris DOC 103324 Baker Correctional Institution P. O. Box 500 Olustee, Florida 32072 Honorable Betty Castor Commissioner of Education. The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Marlene T. Greenfield Administrator Professional Practice Services Section 319 West Madison Street, Room 3 Tallahassee, Florida 32301 Karen B. Wilde, Executive Director Education Practices Commission Room 418 Knott Building Tallahassee, Florida 32399
The Issue The issues to be decided are: Whether Ms. Banfield should be terminated from her employment with the School Board of Palm Beach County effective July 22, 1987, for misconduct in office and gross insubordination based upon an alleged inability to work in a cooperative manner with her peers and supervisors after repeated counseling and warnings were given to her to adjust her attitude. Whether if there is no basis for discharge, the evidence supports some lesser penalty. Whether Ms. Banfield is entitled to back pay if she is not terminated. Whether an award of attorney's fees is appropriate.
Findings Of Fact Ms. Banfield is a non-instructional employee of the School Board of Palm Beach County. She was initially employed at Pahokee Jr.-Sr. High School as an Office Assistant II on an interim basis, effective September 21, 1981. She resigned from that position effected November 13, 1981. Ms. Banfield was re-employed by the School Board at Pahokee Jr.-Sr. High School an a Media Clerk I, effective August 17, 1982. She was transferred to the position of School Office Assistant II, effective August 4, 1983, and has served in that position since that time. Ms. Banfield received formal evaluations of her work performance on February 17, 1984; June 4, 1984; October 1, 1984; January 10, 1985; June 12, 1986; and June 16, 1987. Ms. Banfield received memoranda from two principals at Pahokee Jr.-Sr. High School (Jack Redding and Eugenia Jones) regarding her work performance. She received these on September 17, 1984, January 24, 1986, and August 29, 1987. On May 11, 1987, Ms. Banfield was involved in a discussion with a classroom teacher at Pahokee Jr.-Sr. High School, Kay Ventura. On June 19, 1987, Ms. Banfield received a notice of suspension with pay, recommendation for suspension without pay, and recommendation for termination of employment based upon the charge of misconduct in office and gross insubordination. The School Board of Palm Beach County suspended Ms. Banfield without pay effective July 8, 1987, pending final action on the superintendent's recommendation for termination. The following Findings of Fact are based on evidence adduced at the hearing. As an Office Assistant II, Ms. Banfield has been assigned to work as a receptionist and secretary in the guidance department of the school which is located in a trailer apart from the main school building. Ms. Banfield is employed under an annual contract of employment which had been renewed yearly. The Superintendent of Schools recommended that Ms. Banfield receive an annual contract of employment for the 1987-88 school year. Before the event which is the focus of this dismissal proceeding, Ms. Banfield had received prior notices that her work performance was inadequate due to the "nasty, harsh, abrupt" manner in which she dealt with persons she came in contact with (Petitioner's exhibit 4, dated September 17, 1984). Ms. Banfield was informed that "unless her performance was entirely satisfactory, her continued employment with the District School Board would be in jeopardy." (id.) On October 1, 1984, her employment evaluation contained the comment that I strongly recommend that you seek to improve the tone quality of your voice, however, improvement is noted. Further improvement is needed. (Plaintiff's exhibit 5) Ms. Banfield was recognized as "a very hard worker," however, (id.) in spite of these criticisms, Ms. Banfield's contract was renewed. By January 1985, the employment evaluation noted that the tone quality of her voice had improved tremendously (Petitioner's exhibit 7). By January 1986, however, the new principal of Pahokee Jr.-Sr. High School, Eugenia Jones, wrote Ms. Banfield about the unpleasant attitude and negative tone of voice Ms. Banfield used in the guidance office and on the telephone. Ms. Jones made it clear that such behavior to parents and visitors to the guidance office was unacceptable. (Petitioner's exhibit 8). The June 1986 employment evaluation of Ms. Banfield pointed out that when informed of deficiencies, Ms. Banfield was pleasant but soon reverted back to the same negative behaviors. It was also noted that Ms. Banfield displayed a negative attitude when given additional assignments, and needed to improve her tone of voice. She was also recognized for knowing her job and keeping accurate records. (Petitioner's exhibit 9). Near the opening of the 1986-1987 school year, Ms. Banfield was given a written reprimand by the school principal as the result of an incident which involved the assistant principal, Mr. Thompson. A parent with a child was at the school office trying to find out where to register. The school secretary asked Ms. Banfield where registration was taking place and Ms. Banfield responded, "In our [the guidance) office" and walked away. The assistant principal saw this, and called Ms. Banfield back to escort the parent to the guidance office. After she had been called the first time she did not respond, so the assistant principal called her again. She told the assistant principal in an arrogant voice, "I said in my office, good God." The assistant principal then told her that he only had called her back to escort the parent to the guidance office. Ms. Banfield replied, "Then send her on." Ms. Banfield later was informed by the assistant principal that a display of an attitude problem in front of parents would not be tolerated, and he made a memorandum of the incident which he sent to Ms. Jones, the principal. (Petitioner's exhibit 10). This resulted in a follow-up reprimand from Ms. Jones to Ms. Banfield pointing out that Ms. Banfield's working relationships, unpleasant attitude, and telephone manners had been discussed with her on numerous occasions and that it was expected that Ms. Banfield would provide a warm welcome to all parents and others visiting the school. (Petitioner's exhibits 11). She was also informed that further incidents would result in proceedings to terminate her employment. Ms. Banfield acknowledges she had received warnings from both her former principal (Mr. Redding) and current principal (Ms. Jones) about her attitude. A classroom teacher assigned to teach educable mentally handicapped students entered the guidance office to leave a note for one of the guidance counselors, Joy Gates, on May 11, 1987. At that time, Ms. Banfield's immediate supervisor, Gwendolyn Johnson, the guidance coordinator for the school, was in her own office which is in the trailer where Ms. Banfield serves as secretary and receptionist. Ms. Johnson was meeting with a classroom teacher, Kent Heitman. The door to Ms. Johnson's office was open. Also present in the office suite was a student assistant, Teresa Young. Ms. Ventura asked Ms. Banfield whether Ms. Banfield had an envelope or piece or paper in which she could cover the note she wished to leave for Ms. Gates. The note had to do with a student and Ms. Ventura wished to enclose it to keep the matter confidential. Ms. Banfield told Ms. Ventura she did not have an envelope or any paper to give her. Ms. Banfield was standing at the copy machine at the time. She was responsible for the operation of the copier. Ms. Ventura approached the copy machine and removed a piece of paper from the tray which was not being used at that moment by Ms. Banfield for copying to enclose the note. Ms. Banfield became very angry with Ms. Ventura and began shouting at her. Ms. Johnson and Mr. Heitman heard the shouting and came out of Ms. Johnson's office. Ms. Ventura then went into Ms. Gates' office and stated that she was not going to put up with Ms. Banfield's conduct. Ms. Ventura closed the door to Ms. Gates' office and respondent continued to shout at Ms. Ventura through that closed door. Ms. Ventura had closed herself in Ms. Gates' office because she was afraid of the respondent. Ms. Gates then entered the trailer and found Ms. Ventura in her office. While Ms. Gates discussed the incident with Ms. Ventura, they could hear Ms. Banfield outside the door talking loudly about what Ms. Banfield was going to do as a result of the incident. It is not clear, however, that there was anyone to whom Ms. Banfield was speaking. Ms. Banfield was obviously extremely upset by Ms. Ventura's self-help in obtaining a piece of paper from the copy machine at which Ms. Banfield had been standing, but which Ms. Banfield had not been using at the time. Ms. Ventura removed the sheet of paper from the feed mechanism. Ms. Banfield's expression of anger to Ms. Ventura, and her continued tirade after Ms. Gates returned to the office and was discussing the matter with Ms. Ventura in Ms. Gates' office, was wholly out of proportion to whatever offense Ms. Banfield believed she had suffered from Ms. Ventura. Ms. Banfield reported the incident to the principal, Eugenia Jones, at the suggestion of Gwen Johnson. When Ms. Banfield discussed the incident with Ms. Jones, she was still speaking loudly, shaking, and enraged. Ms. Jones thereafter requested that the assistant superintendent for personnel relations investigate the matter and recommended that disciplinary action be taken against Ms. Banfield. After the incident with Ms. Ventura, Ms. Gates discussed with Ms. Banfield concerns about Ms. Banfield's behavior. For example, on one occasion Ms. Gates was looking for a form usually kept on a file next to Ms. Banfield's desk. While standing along side Ms. Banfield's desk looking for the form, Ms. Banfield asked Ms. Gates what her problem was and made it clear that she did not want Ms. Gates looking for forms on Ms. Banfield's desk. The forms Ms. Gates was looking for are ones which Ms. Gates uses in the performance of her duties. Ms. Gates had also been told by school personnel that they did not like to come to the guidance office because of Ms. Banfield's behavior. On June 16, 1987, Ms. Jones gave Ms. Banfield a written performance evaluation which found that her conduct was unsatisfactory in dealing with fellow staff members, and on June 19, 1987, informed Ms. Banfield that charges of misconduct in office and gross insubordination were being brought due to Ms. Banfield's deficient record of performance in dealing with others. Ms. Banfield was suspended without pay from her position effective July 8, 1987, and this proceeding ensued.
Recommendation It is recommended that a final order be entered terminating the employment of Ms. Banfield as an annual contract employee with the School Board of Palm Beach County for misconduct and gross insubordination. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1060 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-2964 The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 129.59(2), Florida Statutes (1985). Rulings on Petitioner's proposed findings of fact are as follows: Covered in Conclusions of Law. Covered in finding of fact 1. Covered in finding of fact 2. Generally covered in finding of fact 3, otherwise rejected as cumulative. Covered in finding of fact 3, otherwise rejected as cumulative. Generally covered in finding of fact 3. Rejected as unnecessary. Covered in finding of fact 4. Covered in finding of fact 4. Generally covered in the final sentence of finding of fact 11. Covered in finding of fact 6. 12-15. Covered in finding of fact 5. 16-18. Covered in finding of fact 7. 19-20. Covered in finding of fact 8. 21-22. Covered in finding of fact 9 and 10. Covered in finding of fact 11. Covered in finding of fact 12. Covered in finding of fact 12. 26-29. Rejected as argument rather than a finding of fact. The Hearing Officer agrees that Ms. Young's version of the incident is not the more credible, and has accepted the version explained in the testimony of Gwendolyn Johnson, Kent Heitman, Joy Gates, and Kay Ventura. Rulings on Respondent's proposed finding of fact. Covered in finding of fact 5. Rejected as unnecessary and irrelevant. Covered in finding of fact 5. Covered in finding of fact 5. Rejected because of the incident recounted by Assistant Principal Thompson did occur as explained by Mr. Thompson in his testimony and his contemporaneous memoranda, and does constitute a behavior problem of Ms. Banfield. Covered in finding of fact 5. Covered in finding of fact 5. Rejected, the version of the event which is accepted is found in finding of fact 5. Covered in finding of fact 7. Covered in finding of fact 7. Rejected because whether Ms. Ventura may be aloof or unfriendly has nothing to do with the extreme reaction of Ms. Banfield, and aloofness would be an inadequate provocation for the reaction exhibited by Ms. Banfield. Rejected as unnecessary. Covered in finding of fact 7. Rejected as unnecessary. Covered in finding of fact 7. Covered in finding of fact 7. 17-18. Rejected because the Hearing Officer finds that at the time Ms. Ventura removed the paper from the feed tray of the copy machine, Ms. Banfield was not operating the copy machine. Generally covered in findings of fact 7. Covered in finding of fact 7 but I do not find that Ms. Ventura slammed the door to Ms. Gates' office. Rejected because the Hearing Officer does not find that Ms. Ventura emerged from Ms. Gates' office and yelled at Ms. Banfield. Rejected because the Hearing Officer cannot accept the version of the incident portrayed in the testimony of Ms. Young. Without ascribing any motivation to Ms. Young, the Hearing Officer find that the more credible testimony was given by other witnesses. Generally covered in finding of fact 10. Covered in finding of fact 10. Covered in finding of fact 2. Covered in the prehearing stipulation. Covered in finding of fact 3. That Ms. Banfield was recognized for performing her job functions is covered in findings of fact 3 and 4. COPIES FURNISHED: Abbey G. Hairston, Esquire Palm Beach County School Board Post Office Box 24690 West Palm Beach, Florida 33416-4690 Mark A. Cullen, Esquire 1030 Lake Avenue Lake Worth, Florida 33460 Thomas J. Mills Superintendent of Schools Post Office Box 24690 West Palm Beach, Florida 33416-4690
Findings Of Fact Thomas Sundquist was a student enrolled in North Miami Junior High School, operated by the Petitioner, during the school years 1984-1985 and 1985- 1986. Respondent was a seventh grade student during those two school years. He was the subject of seven independent student case management referral forms initiated by school personnel for aberrant behavior. These included 3-1-85: Defiance of Authority; continuous disruptive behavior; failure to complete assignments; failure to bring assigned- materials; and leaving class without permission. 5-24-85: slapping the face of a female student and fighting with her in the classroom. 2-27-86: Assault on another student. 3-21-86: Late to school on test day; left holding area without permission, banged on classroom doors disturbing testees; and evading security and administrators. 5-29-86: Assault on another student; truancy; and defiance of authority. For the assaults on 2-27-86 and 5-29-86, Respondent was given 5 days outdoor suspension for the first and 10 days for the second, and for his misconduct on 4-29-86, was also suspended for 10 days. Counseling policy at this school calls for automatic counseling by the student's grade counselor as well as by a school administrator in the event of a case management referral and in each case, this policy was followed. Further, in each case referenced above except the first, parent contact was accomplished both verbally and in writing. No improvement was noted at any time. On May 30, 1986, Mr. W.G. Murray, a vice principal at the school, requested progress reports on the Respondent from each of his six teachers. These reports were, for the most part, uniformly uncomplimetary. They were: Science - Ms. Fernandez: "He does not do any work. Is never prepared for class. Is a discipline problem and exhibits unacceptable behavior." Music - Ms. Pena: "He has been absent so much he is very far behind on his instrument,but while in class, his conduct is good." P.E.- Ms. Jardine: Class work "F", conduct "D". Math - Mr. O'Keefe: "Was not seen in class after October 8, 1985. Class work "F", conduct "F". He is very disobedient, insultive [sic], and immature." English - Ms. Weber: " He usually sleeps in class. Occasionally will do a spelling list but is not in class long enough to do anything. His conduct is poor, challenging authority, answering back, bangs on door when not in class, and does not often show up for class." [This teacher indicated the student can do the work if he wants to.] Graphics - Mr. Machado: "Refuses to do any work, disruptive, will not stay in seat, talks out loud, hits and touches other students against their will." Mr. Machado and Ms. Fernandez amplified their written comments by testimony at the hearing and confirmed that he was always late for class, was never prepared when he came, and rarely did any work in class. He would chew gum, try to distract the other students, fail to follow instructions and class and safety rules, and would assault other students without provocation. He would try to hug or touch females or fight with males to the point that some students would leave class and go to the assistant principal's office just to get away from him. Both teachers repeatedly had to stop their classroom teaching, taking time away from other students, to attempt, most often unsuccessfully, to deal with the Respondent. Respondent's final report card for the 1985-1986 school year reflected a final grade of "F" for each of his subjects for the year. Out of 180 school days, he was absent: Science: 101 periods. Music: 97 periods. P.E.: 91 periods. Mathematics: 86 periods. English: 104 periods. Graphics: (second semester only) 65 periods. In the 3rd and 4th grading periods, his "effort" grades were uniformly "3" which signifies "insufficient." In the first two grading periods, he did earn 4 "C's" and 1 "D". His "conduct" grades are mostly "F" with some exceptions in Music, P.E., and, in the first grading period only, English, in which he got a "D" and Industrial Arts, in which he got a "C". All three witnesses who testified for Petitioner were of the opinion that Respondent's lack of interest and disruptive behavior cannot properly be handled within the regular class system where teachers have between 33 and 35 students per class. They do not have the time to devote to him and his behavior takes their attention away from other students whose education suffers thereby. They all agree, however, that in the opportunity school, where classes normally consist of 10 to 15 students, he would benefit from the more personalized attention he would receive and would undoubtedly do better. This seems to be a reasonable analysis of the situation and it is so found. Respondent is definitely not interested in school in the regular classroom setting and his behavior is decidedly disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT: Petitioner enter a Final Order affirming the assignment of Respondent to its Opportunity School Program. DONE and ORDERED this 31st day of October, 1986 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 October, 1986. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Ms. Sue Sundquist Stevens 11317 Northeast 11th Place Biscayne Park, Florida 33161 and 14155 West Dixie Highway North Miami, Florida 33161 Dr. Leonard Britton Superintendent of Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32301
The Issue The issue to be determined is whether Petitioner has sufficient grounds to support dismissal of Respondent from employment.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher by the School Board and currently holds a professional services contract. He began working for the School District on or about March 2007, in the middle of the 2006-2007 school year. His first assignment was at Holmes Elementary School where he worked on a “waiver,” since he did not have an elementary education certification. The principal asked him to get his certification in elementary education, which he did. According to Respondent, he was asked to start working early because the principal did not have enough teachers. During that year, he was evaluated as meeting standards in all areas of evaluation and was rehired for the 2007-2008 school year. Prior to becoming a teacher in Miami-Dade County, Respondent served in the United States military from 1978-1985, and had worked as a registered nurse. He holds an associate’s degree from Miami-Dade College, a bachelor’s degree from Florida International University (“FIU”), two master’s degrees from FIU, an academic certificate in gerontological studies from FIU, and an academic teaching certificate from FIU. For the 2007-2008 school year, Respondent worked at Little River Elementary School (“Little River”). The principal at Little River asked Respondent to work on another “waiver,” this time for teaching English as a Second Language students (“ESOL”). After completing the necessary coursework, Respondent received an ESOL certification. Respondent remained at Little River through the 2008-2009 school year until he was involuntarily transferred to Scott Lake Elementary School (“Scott Lake”) for the 2009-2010 school year. During the latter two years at Little River, he was evaluated as meeting standards in all areas. According to Respondent, he was transferred to Scott Lake because the administration of Little River objected to the number of student discipline referrals (“SCMs”) he was writing on students. Respondent reports having written somewhere between 600 and 700 SCMs on students over the years. Respondent freely admits he wrote many SCMs at every school he worked at and highlights that fact as an excuse for why he performed poorly. During Respondent’s first three years of employment at Holmes Elementary and Little River, he was evaluated across the board on his annual evaluations as “Meets Standards.” During this period of time, the only other rating an employee could receive was “Does Not Meet Standards.” During the 2009-2010 school year, Respondent’s principal for his first year at Scott Lake was Valerie Ward. During the 2009-2010 school year, the School District made changes to the teacher performance evaluation system. Use of the Instructional Performance Evaluation and Growth System (“IPEGS”) was implemented. The IPEGS Summative Performance Evaluations (“SPEs”) were now comprised of eight Performance Standards, where a teacher could be rated “Exemplary,” “Proficient,” “Developing/Needs Improvement,” or “Unsatisfactory.” In her first year with Respondent, Ms. Ward rated him “Proficient” in all eight standards. At the end of the 2009-2010 school year, Ms. Ward placed Respondent on a 90-day performance probation pursuant to section 1012.34. During this 90-day probation process, he was observed by administration on at least five different occasions, was put on several improvement plans, and had several meetings with administrators. The 90-day probation process is very time- consuming for both the subject employee and the employee’s administration. In other words, it is not the preferred task of a busy principal, unless he or she must, and then only when it is warranted by poor performance. Respondent believes Ms. Ward placed him on performance probation to retaliate against him because he complained about the temperature in his classroom. This is the first of many excuses and justifications Respondent has offered to explain criticisms of his performance by administrators. For the 2010-2011 school year at Scott Lake, Respondent was again evaluated as proficient in all areas. On or about April 2012, Principal Lakesha Wilson- Rochelle assumed Ms. Ward’s role at Scott Lake. Principal Rochelle signed off on Respondent’s summative evaluation during the 2011-2012 school year, but did not fill it out, since it had already been completed by someone else. The score placed Respondent in the “needs improvement” category. She signed it only because she was required to do so, and the summative evaluation rating she gave him for the next school year was even worse by several points. It was also during the 2011-2012 school year that IPEGS underwent another change. Now there were seven professional practice standards on which teachers were evaluated and one standard that was based on actual student data. Use of IPEGS IPEGS was approved by the Florida Department of Education (“FDOE”) for all years relevant to this case. The IPEGS processes from the 2013-2014 school year forward consisted of the following: Each teacher that had been teaching for more than two years received one formal observation. If during that observation the teacher’s performance was sufficient, nothing more need be done, outside of a summative evaluation at the end of the year. However, informal feedback is given to teachers throughout the year after classroom walkthroughs and through other means. If a teacher was observed to be deficient in one or more standards during the formal observation, the teacher and administration would engage in something called “support dialogue” in which support in various forms is provided to the teacher, so that the deficiencies can be remediated. If the teacher still exhibits performance deficiencies after the support dialogue, they are placed on the 90-day performance probation. While on performance probation, the teacher is observed another four times after the initial observation. After the second, third and fourth observations, if the teacher has not remediated, the administration develops an improvement plan, which must be followed. The improvement plan gives the teacher assignments and assistance to aid him or her in remediating any deficiencies. Also, each teacher, regardless of whether placed on performance probation, receives an SPE, as well as a Summative Performance Evaluation Rating (“SPE Rating”) of either “Highly Effective,” “Effective,” “Developing/Needs Improvement,” or “Unsatisfactory.” In addition to the seven professional practice standards, a data component is also factored into the SPE Rating known as the VAM. The VAM As explained by Director of Research Services Dr. Aleksander Shneyderman (“Dr. S”), the VAM is a statistical model that attempts to measure a teacher’s impact on student learning growth through the use of a multi-level lineal regression. Dr. S has been working with the VAM, since its inception in 2010-2011. He has studied it and keeps abreast of Florida’s rules and regulations of how to calculate it. Dr. S and his office calculate what is called “Local VAM” for the School District. He also provides trainings to School District employees on the use of the VAM. Dr. S was tendered and accepted in this proceeding as an expert in VAM calculation. Local VAM is usually calculated in September/October by his office after the previous year’s testing data become available. Various assessments are used to create the Local VAM. It is calculated in compliance with state statutes, and the methodology is approved each year by FDOE. Also, the methods for calculating the Local VAM are bargained for and ratified by the United Teachers of Dade (“UTD”) teacher’s union. The Florida VAM is calculated by the State using a model that is approved by the Florida Commissioner of Education. The results of the Florida VAM are given to Dr. S’s office by the State. The Florida VAM is created using the Florida Standards Assessment (“FSA”). In the 2013-2014 and 2014-2015 school years, Respondent’s Local VAM scores were calculated by Dr. S’s office and based upon his students’ results on the Stanford 8 Achievement Test, 10th edition. UTD approved the methodology in VAM calculation for both of these years. For the 2015-2016 school year, Respondent’s VAM score was the Florida VAM in English language arts for fifth grade. The goal of the VAM is to measure a teacher’s effectiveness on student learning growth. In order to do this as accurately as possible, students are compared to similar students for an “apples to apples” comparison. Only students with the same demographic characteristics, as well as the same prior year’s test scores are compared to one another. The demographic factors considered are English Language Learner (“ELL”) status, gifted status, disability status, relative age (which considers whether a child was retained in a previous grade), and attendance (which was added in 2014-2015). Student demographics and the prior year’s test scores must be exactly the same. Based on these demographics and past scores, an expected score is created for each student. If the student exceeds that score, the credit for that success is given to the teacher. The School Board and Dr. S concede that the VAM does not account for every possible student performance variable, because, simply put, this would be impossible, since there are a limitless number of factors that could be considered. Moreover, certain factors are forbidden to be used by the Legislature, including socioeconomic status, race, gender, and ethnicity. (See § 1012.34, Fla. Stat.). Respondent argues that because not every imaginable factor that might affect a student’s grade is captured, that the VAM is not useful. Respondent claims that factors beyond the teacher might be causing poor performance, for example: lack of parental engagement. While levels of parental engagement could impact student performance, the School Board states that it is following state statutes to the letter and doing the best it can within the applicable statutory framework. Moreover, just as factors outside of consideration might hurt student performance, other factors might enhance performance, and the teachers receive those possible benefits as well--for example, if parental engagement is good. Those benefits would flow to the teacher, despite not having earned them through his or her personal efforts. Moreover, the VAM score ranges that are used to classify teachers are bargained for with UTD. The ranges have confidence intervals developed through the application of margin of error calculations that mitigate uncertainty to protect and “safeguard” teachers from unfair classifications. In many instances these safeguards give the teachers the benefit of the doubt to make sure they do not fall into the lowest category, which is “unsatisfactory.” Noticeably absent from these bargained for “safeguards” is any mention of how much instructional time a teacher must have with a class before those students’ data can be used to calculate a teacher’s VAM score. UTD has not bargained for any special rules designating when teachers can and cannot be held accountable for their class’ data based on the time they have instructed that class. As such, the only relevant inquiry is whether those students are with that teacher during the FTE period in February. Also, the law (see § 1012.34, Fla. Stat.) makes no mention of any minimum length of instructional time necessary to hold a teacher accountable for his or her students. The 2013-2014 School Year at Scott Lake Refusal to teach basic Spanish In May 2013, near the end of the 2012-2013 school year, Principal Rochelle advised Respondent that he would be teaching a kindergarten class for the 2013-2014 school year and that he would be required to teach them one hour of introductory Spanish. In an email to Principal Rochelle, Respondent asserted that he believed he was being assigned to teach Spanish to the kindergarteners in retaliation for his extensive reporting of student SCMs. In that same email, he advised her that he did not want to teach Spanish. Prior to being advised of this assignment, the School District conducted a language proficiency assessment for Respondent with both a written and verbal component, which he passed. Principal Rochelle had personally seen Respondent speak fluent Spanish to her school secretary and the art teacher. Because Respondent spoke fluent Spanish, or, at least, “conversational” Spanish (as admitted by Respondent’s counsel in his opening), she gave him the assignment. Moreover, as a principal, she had the right to assign Respondent as she saw fit. School Board Policy 3130 - Assignments reinforces this assertion stating, in relevant part, “Instructional staff members may be reassigned to any position for which they are qualified in order to meet needs of the District and pursuant to the collective bargaining agreement.” In order to teach the one-hour basic Spanish component of the class, Respondent did not need to be certified to teach Spanish. He only needed an elementary education certification, which he had. He even attended a training class on the implementation of the Spanish program. Respondent admits he can speak Spanish, write basic Spanish, has taken Spanish classes and passed the School District’s proficiency exam. Curiously, he objected to them giving the proficiency exam to him based on the grounds he was “singled out” for having a Hispanic last name, having been overheard speaking the language, and because he is not from a Spanish-speaking country. These are not reasonable objections when the School District explained the objective reasons listed above regarding Respondent’s qualifications to provide the basic- level Spanish instruction. Respondent persisted in his belief that he is “not qualified” to teach kindergarten Spanish despite all the evidence to the contrary. Respondent simply refused to do something that he was entirely capable of doing and that was within his ambit of responsibilities. He described one of the lessons he was allegedly incapable of teaching as follows, “You put a CD in the player. The kids sing songs in Spanish. The kids cut out pictures of objects and match them to a picture with the word in Spanish.” The kindergartners in his class did not speak Spanish; they spoke English. The Spanish component of the class was very basic and involved things like vowels, colors, puppets, basic books, and vocabulary words. Contrary to Respondent’s assertions, no complex grammar or sentence structure was involved. Such things are not even part of ordinary English kindergarten instruction, as admitted by Respondent. Moreover, he was provided with materials from which to draw the instruction. Principal Rochelle does not speak Spanish herself, yet believes she could teach the Spanish component, as it is a “piece of cake.” Respondent filed a grievance regarding the Spanish assignment. In order to appease and accommodate Respondent, Principal Rochelle eventually sent a Spanish teacher to his room to teach the Spanish component. However, Respondent then complained that the grades she was entering still had his name attached to them in the computerized grading system. Finally, the principal decided to move him to a first-grade class in early November 2013. Undoubtedly, the requests of Respondent led to this assignment change. Formal IPEGS observation On March 11, 2014, Principal Rochelle performed her formal observation of Respondent pursuant to IPEGS. On that day, no performance deficiencies were noted. However, throughout the year, Principal Rochelle had conducted many informal observations and walkthroughs of his classroom and had already provided him feedback regarding his performance and her expectations. Examples of that feedback can be found in an August 27, 2013, email from Principal Rochelle to Respondent. Moreover, according to Principal Rochelle, teachers tend to be on their best behavior during these observations–-which makes sense, because they know the boss/evaluator is watching. The formal observation is also only a snapshot in time of the teacher’s performance on a particular lesson; it is not a reflection of the entire year’s performance. Respondent has argued that Principal Rochelle has retaliated against him. If that were the case, this observation would have been a perfect opportunity to retaliate against him. However, she found no deficiencies in his performance on this day. Scott Lake SPE—Professional Practice Throughout the rest of the school year, Principal Rochelle made other credible observations regarding Respondent’s performance. Despite her counseling that he meet with parents, he refused to do so. He refused to participate in activities, including field trips, school celebrations, and award ceremonies. Other teachers actually had to hand out awards for him at the ceremony. He refused to implement group instruction techniques and did not take advantage of the presence of reading and math coaches. He refused to implement progressive discipline and “red, green, yellow” behavior management techniques. He refused to implement various discipline strategies laid out in the Student Code of Conduct and school-wide discipline plan prior to writing SCMs on students. Principal Rochelle recalls that he wrote approximately 25 SCMs on one student within the first nine weeks of school and made no attempt to address the behavior issues with the student’s parents. At one point Principal Rochelle accommodated his request to have a student removed from his class. Since this was only Principal Rochelle’s first full year as principal of Scott Lake, and she was still new to the school, she tended to give the teachers the benefit of the doubt when completing their SPEs. She also had a few teachers who had to be terminated for lack of professionalism that were more of a priority for her than Respondent. As such, she rated Respondent as “effective” in six standards on his SPE and as “developing/needs improvement” for the Communication standard. In her view, “effective” is akin to a “C” grade, whereas “highly effective” is “A plus/high B” status, “developing/needs improvement” is a “D,” and “unsatisfactory” is an “F.” When asked what Respondent would have rated himself in these seven standards, he testified he would have given himself five “highly effectives” and two “effectives.” He believes Principal Rochelle rated him lower than she should have as a result of retaliation against him for him not wanting to teach Spanish. This is Respondent’s second claim of retaliation against Principal Rochelle, and third claim of retaliation overall. Principal Rochelle’s denial of such retaliation is credited based upon her testimony at hearing and the exhibits offered in support. Despite the fact that Respondent’s 2013-2014 SPE seemed adequate to a casual observer (with the only obvious blemish being the “developing/needs improvement” in the Communication standard), when compared to his peers, a different story emerges. His professional practice points total put him in the bottom .8 percentile for all teachers district-wide and in the bottom 2.6 percentile for all first-grade teachers district-wide. Without belaboring the data, Respondent’s professional practice scores are at the bottom of the barrel, regardless of how you spin them. Scott Lake VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 12.5 points–-the lowest possible score. He was one of 11 first-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2013-2014 school year was “Needs Improvement.” Only 29 percent of his first-grade students met or exceeded their performance expectations. Respondent’s VAM was based on the performance of his first-grade students. Respondent believes that, since he was moved to the class in early November 2013, and the SAT exam was given in April, he should not be held accountable for their performance. In order for him to have a fair shake, he claims he would have had to be there instructing the students on week one. Respondent says the amount of time he was given was not fair because, “if I’m the lowest teacher in Miami-Dade County, and here for termination, no, sir, I don’t think it was fair.” If the rule Respondent proposes were implemented as policy, any teacher could simply avoid responsibility for their student’s performance by requesting a transfer sometime after the first week of the year. It is also not uncommon for teachers to have students added or subtracted from their classes throughout the year for a multitude of reasons. This is a fact of life that teachers have to be able to cope with in the ordinary course of business for the School District. Moreover, and somewhat ironically, if another teacher had been teaching Respondent’s students for a portion of the year, based on his SPE Ratings and student achievement data, Respondent probably would have had better scores. The students would likely have been getting a more effective teacher than he. Respondent also claims Principal Rochelle gave him a lower functioning group of students, who were behind in their learning. He explained that he knew they were low-functioning because he gave them “STAR tests” to gauge their ability levels. When pressed on cross-examination, Respondent admitted that he only tested his own students and never anyone else’s. Therefore, it would be impossible for him to know whether his students were any lower-functioning or further behind than any other teachers’ students. Respondent’s doubtful claim is further undercut by Principal Rochelle’s credible testimony that she selected the members of his first-grade class at random from overcrowded classrooms. Respondent’s claims that he was robbed of instructional time by field trips and fundraising activities, matters that are required of all teachers, are unconvincing excuses for his students’ poor performance. The 2014-2015 School Year at Norwood Shortly after the start of the 2014-2015 school year, Respondent requested a hardship transfer to Norwood Elementary School (“Norwood”) because the school day at Scott Lake was going to be increased by one hour. Despite the fact that he would have been compensated approximately $4,500.00 for this time, he chose to transfer schools. Principal Kevin Williams (or Dr. Williams) had a teacher on leave so he assigned Respondent to fill that gap. Respondent started teaching a kindergarten class, but was moved to a second-grade class during the first week of school. Prior to conducting a formal IPEGS observation of Respondent, Dr. Williams had performed several walkthroughs of his classroom. Based on these walkthroughs, Dr. Williams advised Respondent that he was not properly implementing the school discipline plan. Respondent also refused to implement “grouping” of the students during instruction time. Dr. Williams also had a reading coach model lessons for Respondent and assigned him a teaching assistant. Respondent was the only teacher who received this level of assistance. Dr. Williams even went so far as to have two meetings with UTD prior to his formal evaluation of Respondent in order to help him. By October 2014, Dr. Williams had already explained his expectations to Respondent. Formal IPEGS observation On October 1, 2014, Principal Williams performed the formal IPEGS evaluation of Respondent. Principal Williams noted no deficiencies on that day. Generally speaking, Principal Williams does not view these observations as punitive. Over the years, Dr. Williams has conducted approximately 240 observations of teachers, and, generally, the employees are “on point” when being watched. Moreover, like Principal Rochelle, Dr. Williams views these observations as a snapshot of teacher performance while the SPE captures the year- long performance. In the report of the observation, Dr. Williams suggested that Respondent promote interactions with students, encourage more student participation, connect to prior student knowledge and interests, and present concepts at different levels of complexity, among other items. Norwood SPE—Professional Practice After the formal observation, Dr. Williams continued to conduct walkthroughs of Respondent’s class. He observed the same issues with refusing to use “grouping” and refusing to properly implement the discipline plan. Respondent never took advantage of the modeling techniques that were provided for him. He also was not implementing differentiated instruction. Dr. Williams himself held a professional development class on campus for the school discipline plan, which, instead of attending, Respondent attended a social studies class off campus. Instead of following the prescribed discipline plan, Respondent was trying to control the behavior of his students with treats. Similar to his time at Scott Lake, he refused to participate in field trips, staff gatherings, award assemblies, and student activity days. Respondent had lesson plans, but did not always follow them. He would spend an inordinate amount of time on vocabulary. He gave some tests, but would refuse to grade other tests. The pattern of his teaching was inconsistent, at best. On his SPE, Principal Williams rated Respondent as “effective” in five standards, “highly effective” in one, and as “developing/needs improvement” for the Learning Environment standard. Dr. Williams’ rating for Learning Environment was lower because Respondent failed to implement appropriate discipline strategies despite being told to do so. In eight years of being a principal, this was the first time he had ever given a teacher a “needs improvement” rating. He mostly gives his teachers combinations of “highly effective” and “effective,” if they do what they are supposed to do. Nevertheless, Dr. Williams testified he still went easy on Respondent because he was new to the school. In terms of his SPE professional practice points, Respondent scored in the bottom two percentile for second-grade teachers district-wide and was the worst rated second-grade teacher at Norwood. Instead of following the discipline plan, Respondent was using the emergency call button, writing SCMs, and writing to the superintendent to have ten students removed from his class. Another teacher at the school, Mr. W, had the exact same set of students as Respondent, only he taught them in the afternoon and not in the morning. He had none of the same behavior management issues Respondent had with this same group of children. Respondent claimed that Mr. W was able to manage the children better because, like the students, he was African-American. When asked how Respondent would have rated himself in these seven SPE standards, he would have given himself six “highly effectives” and one “effective.” He believes Principal Williams rated him lower than he should have as a result of retaliation against him for writing SCMs and because he complained about the size of his initial kindergarten class. This marked Respondent’s fourth claim of retaliation overall. Principal Williams credibly denied such retaliation at the hearing. Norwood VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 8.75 points-–the lowest possible score, again. He was one of 50 first-grade teachers district-wide who scored the bare minimum putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only six percent of his second-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from Norwood should not be considered because of his students’ behavioral issues. He also stated he did not have enough textbooks to send home with students. Much like at Scott Lake, he believes he was intentionally given bad students. This is peculiar for two reasons. First, Dr. Williams first tried to assign Respondent another class, but Respondent complained that one was too big. To accept this argument, the viewer would have to believe Dr. Williams knew Respondent would reject the larger class, and the principal had another one in the wings filled with “bad” students to make Respondent look ineffective. Second, Mr. W had none of the same problems Respondent did with this same group of students in the afternoon. To accept this contention, Principal Williams’ plan only “worked” on Respondent, since he was singled out for retaliation. This line of argument is nonsensical, at best. The 2015-2016 and 2016-2017 School Years at Aventura Waterways K-8 In looking for the right fit, Respondent was sent to Aventura Waterways K-8 (“AWK8”) for the 2015-2016 school year. He remained there for the 2016-2017 school year until he was dismissed from his employment in March 2017. As at his previous school assignments, the administrators at AWK8 tried to work with Respondent and the UTD to let him know their expectations prior to the formal observations. During these two school years Respondent was observed formally by Principal Luis Bello and Assistant Principal Ileana Robles on no less than nine occasions. In both years, during his initial observations, his performance was found to be deficient; and he was immediately placed on support dialogue and, eventually, 90-day performance probation. During these two probationary periods, he was provided assistance through improvement plans and completed all his improvement plan assignments. The goal was to help him remediate his deficiencies. The only change he ever implemented was switching from block to weekly lesson plans. Both his instructional delivery and the learning environment never improved. During these observations, Principal Bello and Assistant Principal Robles both observed the same repeated deficiencies, which they described in meticulous detail at the hearing. Summarizing their testimony, the issues concerning Respondent were: Pacing. Respondent spends too much time on issues and did not complete entire lesson plans. Questioning students. Respondent only uses basic, easy to answer questions; does not ask enough questions; or is dismissive of questions. Failing to properly explain concepts to students or to activate prior knowledge. Respondent fails to prompt students in order to generate interest in the subject matter and holds no conversations about the material in class. Not using challenging enough material. Respondent’s material was so basic that parents were concerned their children were getting grades they did not deserve and not learning grade- appropriate material. Principal Bello described Respondent’s instruction as “robotic” and lacking any semblance of “passion.” AWK8—Professional Practice On his SPE, Principal Bello rated Respondent as “effective” in two standards, and “unsatisfactory” in five standards. Principal Bello’s ratings were in line with the repeated deficiencies discussed above. He awarded Respondent “unsatisfactory” ratings because Respondent never remediated his deficiencies. Principal Bello credibly stands by his SPE Ratings as honest and admits to spending a great deal of time on them. In terms of his SPE professional practice points for 2015-2016, Respondent scored in the bottom (0) percentile for fifth-grade teachers at AWK8, all teachers at AWK8, fifth-grade teachers district-wide, and all teachers district-wide. When asked what Respondent would have rated himself in these seven standards, he would have given himself seven “highly effectives.” He believes Principal Bello rated him lower than he should have been rated, but could not say why. AWK8 VAM and overall SPE Rating Respondent’s State VAM score for learner progress points was 8.5 points-–the lowest possible score, for the third year in a row. He was the only one of 98 fifth-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only 32 percent of his fifth-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from AWK8 are not legitimate for a variety of reasons, none of which relate to his own shortcomings. Respondent’s excuses and the reasons not to credit those excuses are as follows: Respondent argues that his VAM cannot be counted against him because his afternoon class of fifth graders were ELL, and they spoke a variety of languages, including French, Russian, Hebrew, Portuguese, Spanish, and Turkish. His theory was that they performed poorly because of their poor grasp of the English language. For VAM scoring purposes, this excuse should not be credited because the VAM already takes into account their ELL status by comparing them only to other ELL students with identical demographics and prior test scores; and they are not expected to perform as well as non-ELL students. However, by Respondent’s own admission his afternoon ELL class was the best class he had had in ten years of teaching. He said they had emotional balance, presence of mind, and good parental engagement. He even explained how his ESOL certification assisted him in understanding how to teach them. According to him, by the end of the year, the students were at the level where they would be having conversations. Respondent also had another ESOL-certified teacher assist him for a portion of the year, which was a standard practice. Finally, ELL students, who are brand new to the country, are not calculated into the VAM because there are no prior year scores for which they can be compared “apples to apples.” Respondent himself testified that the lowest level ELL students did not get graded. This makes sense because Respondent testified that his afternoon ELL class was 31 students-–yet only 15 ELL students were factored into the data used to calculate his VAM score for 2015-2016. In sum, the grades of the lowest English language functioning students were not even held against him. Respondent next argues that the numbers of students in both his morning and afternoon classes at AWK8 exceeded class size restrictions. Respondent “believes” his morning class had 24 or so students, but only 18 after the special education students were removed. When the student data is examined, it appears that Respondent only had 15 non-ELL students factored into his VAM score. As for the afternoon ELL class, otherwise considered by him the best class he has ever had, Respondent claims there were 31 in that class. Even assuming Respondent’s numbers are accurate (and they do not seem to be, given the VAM data), these class sizes do not run afoul of class size restrictions and are commonplace at AWK8. The School District operates on averages for class size compliance and everyone teaching fifth grade at AWK8 had similar class sizes. None of those other teachers had the same problems Respondent did. Moreover, Respondent reported the alleged class size violations to the FDOE, and they did nothing about it. Respondent further argues that his morning group of students was once again a “bad” group that did not give him a “fair shot.” According to Respondent, he had a student who would sit in a garbage can and another that would tell him “F_ _k you” every day. He had behavior concerns with four to five students in the morning class. Eventually, the student who sat in the garbage can was removed from the class. Respondent then testified that these behavior issues were exacerbated by his absence from the classroom when he was performing his improvement plan activities. He now appears to be placing his behavior concerns on the administration for doing their job by trying to assist him and by remediating his deficiencies. Behavior management is integral to being a teacher. A teacher must not be allowed to escape his or her own responsibility for performance shortcomings by blaming it on the students. At every school where Respondent has taught, he has admittedly written a large number of SCMs, had behavior issues with his students, and believes he was purposely given “bad” students. The only common thread among these schools is Respondent. Nevertheless, he refuses to acknowledge that he might possibly be even a part of the problem and believes he has done nothing wrong. Respondent also blames his poor VAM on the fact that fundraising activities, book fairs, student activity days, and dances all detracted from instructional time at AWK8. This is the same excuse he used for his poor VAM at Norwood and holds no weight, since these are activities that all teachers at all schools must cope with as part of the instructional process. Respondent’s Termination by the School Board Respondent’s case was the first of its kind brought pursuant to section 1012.33(3)(b) (“3-year provision”), since this was the first time the School District had the requisite number of years’ data available. Of the thousands of teachers working for Miami-Dade County Public Schools, Respondent was part of a singular group of seven to nine teachers who fell into the three-year provision of the statute having the necessary combination of “needs improvement” or “unsatisfactory” final overall SPE Ratings. Of that handful of teachers, Respondent was the single worst. Respondent’s performance actually declined each year despite the assistance provided for and made available to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 15th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2018. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430 1450 Northeast Second Avenue Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board Suite 912 1450 Northeast Second Avenue Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
