The Issue The issue in this case is whether just cause exists for the suspension and termination of the employment of Respondent, Curtis Sherrod, for failing to correct teaching deficiencies sufficient to warrant a satisfactory performance evaluation.
Findings Of Fact The Parties. Petitioner, the Palm Beach County School Board (hereinafter referred to as the "School Board"), is responsible for the operation, control, and supervision of all public schools (grades K through 12) and support facilities within the jurisdictional boundaries of the Palm Beach County School District (hereinafter referred to as the "School District"). Respondent, Curtis Sherrod, at all relevant times, was licensed by the State of Florida to teach Social Studies for grades five through 12. Mr. Sherrod's certification authorized him to teach political science, economics, psychology, U.S. history, cultures, world geography, and contemporary history. Mr. Sherrod received a Bachelor of Arts degree, with a major in history and a minor in education, from Winston-Salem State University, formerly known as Winston-Salem State Teacher's College. At all relevant times, Mr. Sherrod was employed as a classroom teacher by the School Board. He was employed initially by the School Board from 1980 to 1983. He returned to employment with the School Board in January 1993 and received a Professional Services contract in August 1996. Mr. Sherrod's Employment at Olympic Heights High School. Beginning with the 1995-1996 school year, Mr. Sherrod was employed by the School Board at Olympic Heights High School (hereinafter referred to as "Olympic Heights"). Francis P. Giblin served as principal of Olympic Heights during the times relevant to this case. Until his last evaluation for the 2001-2002 school year, Mr. Sherrod received overall satisfactory performance evaluations. For the 1999-2000, 1996-1997, and the 1995-1996, school years, Mr. Sherrod, while receiving overall satisfactory ratings, had a few "areas of concern" noted. The deficiencies in those noted areas of concern were, until the 2001-2002 school year, corrected by Mr. Sherrod. During the 2001-2002 school year, Mr. Sherrod taught a world history class. After the school year began, several letters were received by Mr. Giblin from parents expressing concern over the content of the material being taught in Mr. Sherrod's world history class and documents which Mr. Sherrod had sent home to parents.1 Mr. Giblin requested that Dr. Christine Hall, an assistant principal at Olympic Heights look into the parental complaints concerning Mr. Sherrod's class. Dr. Hall was responsible for the Social Studies department, of which Mr. Sherrod was a teacher, at Olympic Heights. Dr. Hall spoke with Mr. Sherrod about the complaints. Dr. Hall met with Mr. Sherrod on September 4, 2001, and summarized their conversation in a memorandum of the same date. See Petitioner's Exhibit 27. The complaints, however, continued, with some parents requesting a class change for their children. Dr. Hall again discussed the matter with Mr. Sherrod, but the complaints continued. In approximately October 2001 Dr. Hall began to make informal observations of Mr. Sherrod's class in a further effort to resolve the problem. Toward that end, on October 10, 2001, Mr. Giblin visited Mr. Sherrod's class.2 Dr. Hall also observed a class during which Mr. Sherrod gave a standardized examination.3 At the conclusion of the test, Dr. Hall collected the "Scantrons" and determined the grade each student should have received. These grades were then compared to the final grades given the students by Mr. Sherrod. Due to a significant number of discrepancies in the grades given by Mr. Sherrod and the grades which they should have received based upon the Scantrons, Mr. Sherrod was asked to produce the Scantrons for his other classes. Mr. Sherrod was unable to produce the requested Scantrons because he had, contrary to School Board policy, disposed of them. As a result of his failure to produce the Scantrons Mr. Giblin became even more concerned about Mr. Sherrod's performance and ordered further observations of his classes.4 On November 27, 2001, Dr. Hall informed Mr. Sherrod in writing that she intended to conduct an observation of his class sometime during the "week of December 3-7." Mr. Sherrod wrote back to Dr. Hall and indicated that any day that week was fine, except for December 3 because "I will be collecting homework that day." Dr. Hall conducted observations on December 3 and 5, 2001. She conducted the observation on December 3rd despite Mr. Sherrod's suggestion because she did not believe it would take the entire class for Mr. Sherrod to collect homework. By memorandum dated December 11, 2001, Dr. Hall provided Mr. Sherrod with a discussion of her observations and suggested improvement strategies. Dr. Hall found deficiencies in the areas of management of student conduct; presentation of subject matter; human development and learning; learning environment; communication; and planning.5 On December 18, 2001, Mr. Giblin, Dr. Hall, Mr. Sherrod, Jerilyn McCall, Jeanne Burdsall, and Diane Curcio- Greaves participated in an "investigative meeting" to "discuss concerns regarding failure to perform professional duties, insubordination and unprofessional behavior." That meeting was summarized in a Meeting Summary provided to Mr. Sherrod. See Petitioner's Exhibit 32. On January 7, 2002, Mr. Giblin, Dr. Hall, Mr. Sherrod, Ms. Burdsall, Ms. Curcio-Greaves, Esther Bulger, Margaret Newton, and Debra Raing met "to provide information on benchmarks, curriculum and to insure [sic] students are prepared with information to take the district exam." A Meeting Summary was provided to Mr. Sherrod. On April 30, 2002, Mr. Giblin again observed Mr. Sherrod's class. Mr. Giblin's written observations are contained in Petitioner's Exhibit 34. Mr. Giblin found concerns in the areas of presentation of subject matter, communication, and learning environment. A summary of his concerns and recommendations for improvement were provided in writing to Mr. Sherrod on or about May 15, 2002.6 On May 16, 2002, Mr. Sherrod was given an overall unsatisfactory performance evaluation. Seven areas of concern were noted. Under Section A, Teaching and Learning, the following areas of concern were noted: presentation of subject matter; communication; learning environment; and planning. Under Section B, Professional Responsibilities, the following areas of concern were noted: record keeping; working relationships with coworkers; and policies/procedure/ethics. Mr. Giblin did not specifically review the grades of students in Mr. Sherrod's classes before giving Mr. Sherrod his final evaluation. On May 29, 2002, Mr. Sherrod was provided with a School Site Assistance Plan (hereinafter referred to as the "SAP"), "to be initiated August 7, 2002." The SAP was scheduled by agreement to begin at the beginning of the next school year (2002-2003), because the 2001-2002 school year was about to end. Mr. Sherrod was also provided at the same time that he was given the SAP with "workbooks" by Dr. Hall which she indicated were "to be used for fulfilling your plan's suggested activities." During the 2001-2002 school year, Mr. Sherrod was adequately advised of his areas of concern and, despite being given sufficient time to do so, failed to remedy them. Olympic Heights administrators complied with all procedural requirements for the issuance of the SAP. Mr. Sherrod's Employment at Suncoast High School. Prior to the end of the 2001-2002 school year, as the result of meeting with School District Assistant Superintendents, Mr. Sherrod was transferred from Olympic Heights to Suncoast High School (hereinafter referred to as "Suncoast"), on September 23, 2002. For the school year 2002-2003, Kay Carnes was the principal of Suncoast. Kathleen Orloff served as an assistant principal. Upon his transfer to Suncoast, Mr. Sherrod was provided with a two-week orientation period before being assigned teaching responsibilities. Following this orientation period, classes, including some honors classes, were assigned to Mr. Sherrod. On September 30, 2002, a meeting was conducted "to discuss the status of Curtis Sherrod's Assistance Plan." The meeting was attended by, among others, Ms. Carnes and Ms. Orloff. While the Conference Notes of the meeting indicate that Ms. Orloff was to "create a school-site assistance plan" the evidence failed to prove that a "new" SAP was developed.7 On October 21, 2002, the SAP developed at Olympic Heights was modified primarily to reflect that the SAP would be administered at Suncoast (hereinafter referred to as the "Suncoast SAP"). The dates of the SAP were modified to reflect that it had been agreed to in October 2002 with the names of relevant individuals modified. Finally, the improvement strategies of videotaping and audio-taping a lesson were eliminated.8 The Suncoast SAP was provided to Mr. Sherrod during a School-Site Assistance Plan Meeting. During the meeting, which was memorialized in Petitioner's Exhibit 1, additional assistance review days (October 31, November 12, and November 22, 2002) were agreed upon. The second School-Site Assistance Plan Meeting was held on October 31, 2002.9 Mr. Sherrod was informed that Ms. Orloff would observe his class on November 5, 2002, at 1:00 p.m., and that Ms. Carnes would observe him on November 13, 2002. That meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 38. Ms. Orloff, who was primarily responsible for implementing the Suncoast SAP, had been conducting informal observations of Mr. Sherrod's class before scheduling formal observations. The next School-Site Assistance Plan Meeting was held on November 12, 2002. The meeting was memorialized. Mr. Sherrod was informed that planning, presentation of subject matter, communication, learning environment, record keeping, and polices/procedures/ethics were still areas of concern. He was also told that working relations with co-workers was no longer an area of concern. Ms. Orloff conducted observations of Mr. Sherrod on November 5, 2002, and on November 7, 2002. Her observations were summarized in a memorandum to Mr. Sherrod dated November 12, 2002. She noted concerns in the areas of presentation of subject matter, communication, planning, and learning environment. Recommended actions to be taken with regard to each area of concern were also suggested. Although the Suncoast SAP was only required to last for a minimum of 30 days, the plan was continued until February 2003. School-Site Assistance Plan Meetings were held on November 22, 2002, January 7, 2003, and January 16, 2003. Observations of Mr. Sherrod's classes were also conducted by Ms. Orloff and summaries of her findings were provided to him along with suggestions on how to improve. Observations were conducted on November 19, 2002, January 15, 2003, January 27, 2003, and February 6, 2003. From the moment the Suncoast SAP was initiated, Suncoast personnel, including Ms. Carnes and Ms. Orloff, evaluated Mr. Sherrod and attempted to assist him to improve in the areas of concern they noted. Mr. Sherrod was allowed to observe other teachers, the chair of his department worked with him on planning, a teacher who also taught American History worked with him, he was allowed to attend workshops, he was provided the assistance of a peer assistance and review, or "PAR," teacher, and he was provided with documentation as to what was expected of teachers at Suncoast. He was also allowed to teach Contemporary History in substitution for American History. The curriculum of the teacher who had previously taught the class was provided to Mr. Sherrod for his use. At no time did Mr. Sherrod complain to anyone involved in the implementation of the Suncoast SAP that the assistance he was being provided was inadequate or that he desired any additional help. Nor did Mr. Sherrod or his union representative suggest at any time that the procedures required to be followed up to that point were not being adhered to. While a SAP is required to last 30 days, the Suncoast SAP began October 21, 2002, and did not end until February 6, 2003. During this time, he was observed on six different occasions. Additionally, after beginning to teach at Suncoast, Mr. Sherrod was informally observed until the Suncoast SAP began. While Mr. Sherrod corrected the concern over his interaction with co-workers which had been noted at Olympic Heights, Ms. Carnes found through her observations that he continued to be deficient in the areas of presentation of subject matter, communication, learning environment, planning, record keeping, and policies/procedures/ethics. Therefore, on February 6, 2003, Ms. Carnes gave Mr. Sherrod an overall unsatisfactory Classroom Teacher Assessment System (CTAS) evaluation noting these areas of concern. Ms. Carnes informed Arthur C. Johnson, Ph.D., the Superintendent of the School District, of the remaining areas of concern and concluded that "a sufficient number of these deficiencies still exist to warrant an unsatisfactory evaluation." She requested, therefore, by letter dated February 6, 2003, that Mr. Sherrod be placed on Performance Probation for 90 calendar days (hereinafter referred to as the "90-Day Plan"). Mr. Sherrod was provided with a copy of the letter. The basis for the unsatisfactory evaluation and the continuing deficiencies in the areas of concern noted are accurately summarized in the various School-Site Plan Meeting Summaries and the memoranda summarizing observations conducted during the 2002-2003 school year. Some of the most significant problems involved Mr. Sherrod's excessive and inappropriate use of R-rated videos, his failure to timely post student grades,10 and his failure to provide instruction in a manner which was consistent with time-lines suggested for teachers to complete instruction on all materials that were supposed to be covered. By letter dated February 10, 2003, Superintendent Johnson notified Mr. Sherrod in writing that he was being placed on a 90-Day Plan and that it would begin February 20, 2003, and conclude on June 4, 2003. Assistance reviews were scheduled to be held on March 31, May 5, and June 4, 2003, the last day of the 90-Day Plan. Dr. Johnson's letter was provided to Mr. Sherrod on February 19, 2003, at a School-Site Assistance Plan Meeting. The first observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of February 24-28, 2003, by Diane Curcio-Greaves, Instructional Specialist, Professional Standards. This observation was made by Ms. Curcio-Greaves on February 27, 2003. A summary of the observation was provided by Ms. Curcio-Greaves to Mr. Sherrod on March 7, 2003. Ms. Curcio- Greaves noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, learning environment, and planning. The second observation to be conducted pursuant to the 90-Day Plan was to be conducted the week of March 10-14, 2003, by Wanda Hagan, Area 5 Coordinator. This observation was made by Ms. Hagan on March 13, 2003. A summary of the observation, dated March 25, 2003, was provided by Ms. Hagan to Mr. Sherrod on March 28, 2003. Ms. Hagan noted deficiencies and recommended improvement strategies in the areas of presentation of subject matter, communication, planning, policies/procedures/ethics, and record keeping. She commended him in the area of learning environment. Mr. Sherrod did not attend, due to illness, the first Assistance Review meeting which had been scheduled as part of his 90-Day Plan for March 31, 2003. The remaining scheduled observations did not take place either. On April 14, 2003, Mr. Sherrod broke his knee cap. As a consequence, he did not return to Suncoast High for the remainder of the 2002-2003 school year. By memorandum dated April 30, 2003, he informed Ms. Carnes that he would not be returning to Suncoast that school year and requested a transfer to a school closer to his home. Mr. Sherrod, for the first time, also raised a number of concerns he had not previously expressed about his perceived lack of assistance and fair treatment at Suncoast. While the evidence proved that Mr. Sherrod may have had a genuine belief that he was not being provided effective assistance, the evidence failed to support his perception. Mr. Sherrod's Employment at Roosevelt Middle School. Mr. Sherrod was reassigned to Roosevelt Middle School (hereinafter referred to as "Roosevelt") effective October 3, 2003, after Marcia Andrews spoke with Gloria Crutchfield, principal of Roosevelt, about the availability of a position for him.11 Mr. Sherrod was assigned to teach 7th grade social studies classes, a couple of which were honors classes. On November 3, 2003, Ms. Curcio-Greaves, from Professional Standards, reviewed the 90-Day Plan with Ms. Crutchfield. Ms. Crutchfield did not, however, immediately institute the Plan. Rather, because Mr. Sherrod had begun teaching in mid-term and was new to Roosevelt, Ms. Crutchfield gave him additional time to become familiar with the new school before reinstating the remainder of the 90-Day Plan. A District Assistance Plan Meeting, which Mr. Sherrod attended, was held on December 2, 2003, to discuss reinstatement of the 90-Day Plan. It was necessary to revise the Plan to reflect Mr. Sherrod's unavailability to complete the Plan at Suncoast. It was agreed by all in attendance at the meeting, including Mr. Sherrod, that Mr. Sherrod had 44 more days to complete the 90-Day Plan, and that the Plan would be restarted December 3, 2003. The "evaluation from February 6, 2003, the assistance plan, the original calendar of 90 days, the revised calendar, and the 90-day timeline" were distributed during the December 2, 2003, meeting. The 90-Day Plan, as revised (hereinafter referred to as the "Revised Plan), provided that the "1st Assistance Review" would be held on December 2 and 5, 2003,12 the "2nd Assistance Review" would be held on January 6, 2004, and the "3rd Assistance Review" and "Final Evaluation Conference" would be held on the 90th day, February 6, 2004. Having had two formal observations under the 90-Day Plan, additional formal evaluations were scheduled for the week of December 8-12, 2003, and January 12-16, 2004. The first evaluation under the Revised Plan was conducted on December 12, 2003, by Frank Rodriguez, Assistant Principal, Forest Hill Community High School. His observation notes and suggested strategies were provided to Ms. Crutchfield and Mr. Sherrod by Memorandum dated December 15, 2003. Mr. Rodriguez noted deficiencies in the areas of presentation of subject matter, classroom management, planning, and assessment. Mr. Sherrod submitted a written rebuttal to Mr. Rodriguez's Memorandum. The next scheduled formal evaluation was conducted on January 21, 2004, by Dr. Mary Gray. Ms. Gray's written observations were provided to Mr. Sherrod on or about January 29, 2004. Dr. Gray noted deficiencies in the areas of presentation of subject matter, learning environment, and planning. Mr. Sherrod provided a verbal rebuttal to Dr. Gray. The "2nd Assistance Review" meeting, which had been scheduled to be held on January 6, 2004, was held on January 29, 2004. The meeting was held late because Mr. Sherrod had been absent between January 6 and 12, 2004 (four school days), due to the passing of his mother. It was not held until January 29th out of respect for his loss. The meeting was memorialized in a Meeting Summary, Petitioner's Exhibit 56. During the January 29, 2004, meeting, Ms. Crutchfield suggested to Mr. Sherrod and his representative that he agree to an extension of the Revised Plan to February 10, 2004,13 due to Mr. Sherrod's absence. Mr. Sherrod agreed. The evidence failed to prove whether Ms. Crutchfield had the authority to grant this extension. The next and final evaluation conference was scheduled for February 10, 2004. The same day the "2nd Assistance Review" meeting was held, January 29, 2004, Ms. Crutchfield informed Mr. Sherrod verbally and in writing that she would conduct a formal and final evaluation during the week of February 2-6, 2004. This observation had been scheduled originally for the week beginning January 27, 2004, but was moved back due to Mr. Sherrod's absence during January and Ms. Crutchfield's absence. When informed verbally of the observation, Mr. Sherrod indicated that it was likely that he would be going out on leave in the near future and asked if Ms. Crutchfield could specify the exact date of his evaluation. Ms. Crutchfield indicated she could not. Petitioner's Exhibit 56. By letter dated February 20, 2004, Ms. Curcio-Greaves informed Mr. Sherrod by letter that the final evaluation conference scheduled for February 10, 2004, was being rescheduled to February 16, 2004. Although Ms. Crutchfield had indicated that she would wait until February 10, 2004, to complete the Revised Plan, Mr. Sherrod, as he had advised, left Roosevelt on leave before that date and before Ms. Crutchfield was able to conduct a formal evaluation of him. Based upon her informal evaluations of Mr. Sherrod conducted during the 2003-2004 school year and the formal observations conducted by others during the 90-Day Plan and the Revised Plan, she issued a final evaluation of Mr. Sherrod on February 9, 2004. This reduced the amount of time that Mr. Sherrod had been given to improve his noted deficiencies from approximately 94 days to 93 days: 44 under the 90-Day Plan at Suncoast; 46 under the Revised Plan at Roosevelt; and an additional three days from February 6 to February 9, 2004, at Roosevelt. Ms. Crutchfield found in her final evaluation of Mr. Sherrod that he still had the following areas of concern: presentation of subject matter; communication; learning environment; planning; record keeping; and policies/procedures/ethics. Four of the areas of concern were in "Teaching and Learning" and two were in "Professional Responsibilities." Three concerns in Teaching and Learning alone is sufficient for an overall evaluation of unsatisfactory. Mr. Sherrod's overall evaluation was unsatisfactory. Ms. Crutchfield provided her evaluation of Mr. Sherrod to Dr. Johnson and recommended that his employment be terminated. By letter dated February 25, 2004, Dr. Johnson informed Mr. Sherrod that he would be recommending to the School Board that Mr. Sherrod's employment be terminated. A copy of Ms. Crutchfield's letter of recommendation and Mr. Sherrod's final evaluation were provided to Mr. Sherrod with Dr. Johnson's letter. Mr. Sherrod was also informed of his right to request an administrative hearing, which he exercised. Mr. Sherrod's Performance was Unsatisfactory. Beginning with the 2001-2002 school year and ending with his final evaluation on February 9, 2004, Mr. Sherrod was formally evaluated by nine different School District employees, all of whom were professionally trained to conduct evaluations of teaching personnel on behalf of the School Board. All of those evaluators, while finding Mr. Sherrod deficient in a number of areas, attempted to offer assistance to him which, if followed, could have corrected his deficiencies. During the three school years for which Mr. Sherrod was found to be deficient, all required assistance was provided to Mr. Sherrod to assist him in correcting his deficiencies. Indeed, more assistance than was required was provided to Mr. Sherrod. Mr. Giblin concluded that Mr. Sherrod, for his final evaluation, had evidenced four areas of concern under Teaching and Learning: presentation of subject matter; communication; learning environment; and planning. Except for planning, Dr. Hall found the same areas of concern. Mr. Giblin also concluded that Mr. Sherrod evidenced the following areas of concern under Professional Responsibilities: record keeping; working relationships with coworkers; and policies/procedures/ethics. At the conclusion of the SAP, Ms. Carnes concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin: presentation of subject matter; communication; learning environment; and planning. Ms. Orloof had found the same areas of concern during two prior evaluations. Ms. Carnes also concluded that Mr. Sherrod evidenced two of the same areas of concern under Professional Responsibilities found by Mr. Giblin: record keeping; and policies/procedures/ethics. At the conclusion of the 90-Day Plan, Ms. Crutchfield concluded that Mr. Sherrod, for his final evaluation, had evidenced the same areas of concern under Teaching and Learning found by Mr. Giblin and Ms. Carnes: presentation of subject matter; communication; learning environment; and planning. Ms. Crutchfield also concluded that Mr. Sherrod had evidenced the same areas of concern under Professional Responsibilities found by Mr. Giblin and Ms. Carnes: record keeping and policies/procedures/ethics. Ms. Crutchfield, while performing informal evaluations of Mr. Sherrod, did not perform a formal final evaluation of Mr. Sherrod. Instead, she relied heavily upon her informal evaluations and the evaluations of Ms. Curcio-Greaves, Ms. Hagan, Mr. Rodriguez, and Ms. Gray. Those evaluators, while all finding that presentation of subject matter and planning were areas of concern, were not consistent in their findings concerning the areas of communication and knowledge of subject matter. Ms. Hagan commended Mr. Sherrod in the area of knowledge of subject matter and Mr. Rodriguez failed to note the area of knowledge of subject matter as an item of concern. Ms. Gray and Mr. Rodriguez, the last two individuals to formally evaluate Mr. Sherrod before Ms. Crutchfield's evaluation failed to conclude that communication was an area of concern. It is, therefore, found that Ms. Crutchfield's conclusion that Mr. Sherrod had not corrected his deficiencies with regard to the areas of communication and knowledge of subject matter was arbitrary and not supported by the weight of the evidence. Despite the foregoing finding, Ms. Crutchfield's overall evaluation that Mr. Sherrod's performance was unsatisfactory was reasonable and supported by the weight of the evidence. Mr. Sherrod continued since the 2001-2002 school year and, more importantly, throughout the 90-Day Plan to evidence concerns in the areas of presentation of subject matter, planning, record keeping and policies/procedures/ethics. Thus, he evidenced two areas of concern in Teaching and Learning and two areas of concern in Professional Responsibilities, which were not corrected during the 90-Day Plan, despite efforts to assist him to improve. Ms. Crutchfield's final evaluation, with the exceptions noted, accurately reflected Mr. Sherrod's areas of concern and his unsatisfactory performance at the end of the Revised Plan despite the reasonable assistance provided to him. Those areas of concern were consistently found by nine evaluators over three school years and at three different schools. No credible evidence was presented to counter the conclusions reached by the individuals who evaluated Mr. Sherrod or to prove that their conclusions were based upon anything other than their professional judgments concerning Mr. Sherrod's performance. Failure to Prove Bias on the Part of the School Board. While at Olympic Heights, Mr. Sherrod wrote to Dr. Johnson once, the chairman of the School Board twice, and filed a "petition" with the School Board. The subject of the correspondence was Mr. Sherrod's perception of his treatment by officials at Olympic Heights. He believed that he was being harassed and discriminated against. It has been suggested that Mr. Sherrod's correspondence accurately reflects why his performance was found unsatisfactory at Olympic Heights and evidences a bias toward him on the part of all those who evaluated him. This suggestion is not supported by the evidence. At best, Mr. Sherrod's correspondence evidences the poor working relationship between Mr. Sherrod and some of his coworkers. This poor working relationship was noted as an area of concern on his final evaluation by Mr. Giblin. It is not necessary to decide who was the cause of the poor relationship between Mr. Sherrod and others at Olympic Heights. First, the area of concern, to the extent it was Mr. Sherrod's fault, was corrected by Mr. Sherrod and formed no basis in the ultimate finding that Mr. Sherrod's performance, uncorrected by the 90-Day Plan and the Revised Plan, was unsatisfactory. Additionally, the evidence failed to prove that anything which occurred while Mr. Sherrod was teaching at Olympic Heights had any influence on the conclusions concerning his performance at the two schools to which he transferred for the two school years after he sent the correspondence to Dr. Johnson and the School Board. Indeed, the fact that he did not send any further correspondence after the 2001-2002 school year further supports this conclusion. Dr. Dunn's Conclusions. Dr. Dunn opined at the final hearing that Mr. Sherrod did not over-infuse African-American history into his course materials. Dr. Dunn's opinions, however, are entitled to little weight. Most importantly, Dr. Dunn, unlike the nine individuals who evaluated Mr. Sherrod, did not actually observe Mr. Sherrod teaching during the times relevant to this case. In fact, Dr. Dunn has never observed Mr. Sherrod. Additionally, the content of Mr. Sherrod's classes, while the catalysts of the greater scrutiny afforded Mr. Sherrod's classes, was not the basis for the conclusion of those who evaluated Mr. Sherrod that his performance was unsatisfactory. The School District's Appraisal System. The School District's Instructional Performance Appraisal System was approved the then-Commissioner of Education in 1999. The Appraisal System has not been further reviewed since 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying Mr. Sherrod's suspension and discharging him from further employment in the Palm Beach County Public Schools. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2005.
The Issue Whether just cause exists for Petitioner, Palm Beach County School Board ("Board"), to suspend Respondent, Lori Schwartz, from her position as a Speech and Language Pathologist ("SLP") for a period of ten days without pay.
Findings Of Fact The Parties The Board is the constitutional entity authorized to operate, control, and supervise the District. Pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1001.32, Florida Statutes, the District has the authority to discipline employees pursuant to section 1012.22(1)(f), Florida Statutes. Respondent began her employment with the District on August 3, 2005. Respondent is employed with Petitioner as an ESE teacher, teaching SLP at Sunrise Park. She has been a SLP for 32 years. Respondent's employment is governed by the collective bargaining agreement between the District and the Palm Beach County Classroom Teachers Association ("CBA"), Board policies, Florida law, and Department of Education rules. As an SLP, Respondent's duties include: testing and providing therapy to students who need assistance in speech or language skills; writing Individual Education Plans ("IEPs"); writing quarterly progress notes for her students; drafting the Plan of Care for each student; reevaluating students; and billing for Medicaid. These duties are time-sensitive because a student's course of study and evaluation for needed accommodations to provide appropriate academic support rely upon the IEP and Plan of Care. There are also strict federal guidelines regarding when these items need to be accomplished. In 2001, Respondent was diagnosed with multiple sclerosis ("MS"). MS is a progressive debilitating disease that results in physical deterioration. As a result of her MS, Respondent has difficulty walking, using her hands, seeing, concentrating, and prioritizing tasks. Respondent testified that she continues to work because she "want(s) to help people communicate better and learn and progress to the next level." To assist Respondent in performing her assigned duties, the District provided a variety of supports including: a walker and scooter to get around school; the assistance of a one-on-one paraprofessional to type and write for Respondent and to transport SLP students from their sessions with Respondent back to their classrooms; an enlarged computer screen to help her see; and individual coaching on time management and prioritization of tasks by Traci Boysaw, a teacher with the title of PAR Counselor. Respondent testified that she was provided with all the assistance she needed to perform her assigned duties. Respondent was also referred to the District's Employee Assistance Plan but declined to avail herself of that opportunity. Circumstances Giving Rise to Respondent's Discipline In accordance with the CBA, Respondent was subject to increasing levels of discipline for failing to follow directives and meet deadlines for certain tasks prior to her ten–day suspension. On March 30, 2017, Respondent received a Verbal Reprimand with Written Notation ("Verbal Reprimand") from Sunrise Park Principal, Alicia Steiger, for insubordination for not complying with directives to complete certain work by assigned deadlines given to her on September 2, 2016, and January 27, 2017. In this Verbal Reprimand, Respondent was directed to adhere to all deadlines and complete testing and reevaluation of students by deadlines in April. She was also directed to ensure all documents for IEPs and reevaluations were completed before the specific meeting with the IEP team was scheduled. Respondent was also directed to submit weekly logs by the end of the week to Principal Steiger and to follow all Board policies. She was advised that failure to adhere to these directives would be considered insubordination and result in further discipline. On May 23, 2017, Respondent received a Written Reprimand issued by Principal Steiger for insubordination and violation of Board Policies 1.013, Responsibilities of School District Personnel and Staff; 3.10, Conditions of Employment with the District; 3.02, Code of Ethics; and 2.34, Records and Reports. Respondent was cited for not following the directives of the Verbal Reprimand and continuing to ignore deadlines for student testing, reevaluations, and submitting documentation. She also came to an IEP meeting on March 17, 2017, "wholly unprepared." Respondent was specifically advised, "[y]our actions demonstrate a failure to fulfill the responsibilities of a teacher and to protect the learning environment." Respondent received a second Written Reprimand issued by Dianna Weinbaum, Director of Professional Standards, on December 7, 2017. Like her prior discipline, Respondent was cited for failing to adhere to testing, meet student evaluation deadlines, and complete Plan of Care documentation following each IEP meeting. She was advised her failure to abide by prior directives constituted insubordination and violated various School Board policies. Despite this progressive discipline and the extension of deadlines within which to complete certain tasks, Respondent failed to accurately or timely complete assignments. On March 14, 2018, Respondent was advised that the Office of Personnel Services ("OPS") was opening an investigation into her ongoing "gross insubordination." On April 4, 2018, Respondent was informed in writing that the investigation was nearing completion and a predetermination meeting was set for April 17, 2018. Respondent was advised that she was being investigated for policy violations related to failure to fulfill responsibilities as a teacher, ethical misconduct, and gross insubordination. The investigation confirmed that Respondent failed to meet specific deadlines and did not "complete work with fidelity." Respondent submitted work replete with errors after multiple correction attempts or in some cases, not at all. This was despite years of additional support and close direction from Eileen Peterson, another SLP at Sunrise Park who provided Respondent with technical assistance for seven years. Respondent was also provided a personal assistant, Susan Panatojov, who helped her with clerical duties and physically retrieving students for testing and therapy. Respondent was also provided an additional eight hours per week to assist her in getting her work done and additional time to test her students. The District provided all accommodations which were requested by Respondent. Despite this extra assistance and reduced work load, Respondent still submitted work with multiple errors and on an untimely basis. The April 17, 2018, predetermination meeting was held as scheduled and Respondent was provided an opportunity to provide additional information, dispute, explain, or elaborate on the information from the investigative report. On May 29, 2018, Respondent was provided notice that the District Superintendent intended to recommend a ten-day suspension without pay to the Board at its June 20, 2018, meeting. The Board voted to accept the recommendation and this decision was timely challenged by Respondent. At final hearing, Respondent admitted that her work was often untimely, contained errors, and that she had great difficulty in setting priorities and managing her time. She acknowledged that she missed the deadlines provided in the Verbal and Written Reprimands. Petitioner argues that this behavior is a direct result of her medical condition, that she never refused an assignment, and that it was unintentional. However, Petitioner also conceded that she never advised Principal Steiger that she could not perform her job due to her physical challenges, was provided all requested accommodations, trained properly on how to perform her assigned tasks, and given an extensive variety of support services to help her perform the essential functions of her job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board uphold the suspension of Respondent's employment for ten days without pay. DONE AND ENTERED this 13th day of June, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 June, 2019.
The Issue The issue for determination is whether Respondent committed the allegations set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact Respondent began her teaching career as a substitute teacher in 1984 and has been an educator ever since. She holds a teaching certificate, issued by the State of Florida, Department of Education, and is certified to teach varying exceptionalities (VE), emotionally handicapped (EH), English speakers of other languages (ESOL), business, business education, mathematics, and middle school grades. Respondent was employed with Petitioner as a classroom teacher since the 1993-94 school year. For the 1993-94 and 1994-95 school years, Respondent's annual evaluations were satisfactory, with no areas of concern being listed. For the 1996-97 school year, Respondent's annual evaluation was satisfactory, with one area of concern being listed. The area of concern was "Adheres to and Enforces School Policies." Petitioner did not renew Respondent's contract at the end of the school year. Prior to the non-renewal of her contract at the end of the 1996-97 school year, no complaints were made and no issues were raised regarding Respondent's performance in the classroom. After her contract was not renewed, Respondent was prepared to file an unfair labor practice charge against Petitioner. Among other things, Respondent considered herself to be entitled, as a matter of law, to a professional service contract, because she had been employed as an annual contract teacher for more than three years. However, in lieu of litigation, on October 10, 1997, Respondent and Petitioner entered into a Settlement Agreement, enabling her to return to work. The Settlement Agreement provided in pertinent part: Ms. Windecker [Respondent] will be placed on a fourth year of probationary service for FY98 and will be issued an annual contract in accordance with Fla. Stat. Section 231.36(3)(c). Ms. Windecker's reinstatement will be effective . . . upon her return to work on the first Monday following the execution of this agreement. . . . * * * In the event, Ms. Windecker's performance for the FY98 school year is satisfactory she will be recommended for a Professional Services Contract. Satisfactory performance will be determined in compliance with the standards set forth in Florida Statutes Section 231.29, the Collective Bargaining Agreement between the Palm Beach County Classroom Teachers Association and the Palm Beach County School District, and the policies and directives of the Palm Beach County School Board. Ms. Windecker understands that her acceptance of the annual contract in 1 above is not a guarantee of continued employment in her position with the School District beyond the FY98 school year. The District understands that Ms. Windecker's satisfactory performance during the 1997-98 school year will require that she be recommended for and granted a professional services contract. In the event Ms. Windecker's performance for FY98 is determined by the District to be unsatisfactory, she will be entitled to a hearing pursuant to Fla. Stat. Section 231.36(6)(a) before the Division of Administrative Hearings. As a result of the Settlement Agreement, Respondent returned to work. Petitioner administratively placed Respondent at Indian Pines Elementary School (Indian Pines), effective October 13, 1997. At time of her placement, Indian Pines had a vacancy in VE and EH. Petitioner assigned Respondent to the VE position. Petitioner notified the principal of Indian Pines, Kenneth Meltzer, that Respondent was being placed at his school in the VE position. Principal Meltzer met Respondent for the first time on October 13, 1997. Principal Meltzer was not aware of the Settlement Agreement until approximately ten days after Respondent came to Indian Pines. When Respondent reported to Indian Pines on October 13, 1997, Principal Meltzer met with her and discussed, among other things, the VE class situation and the two individuals to contact should she need anything. The two individuals were Elizabeth Cardozo, assistant principal, and Jay Riegelhaupt, exceptional student education (ESE) coordinator and speech language pathologist. A pre-observation planning guide was usually provided to teachers at Indian Pines. Respondent did not receive a pre- observation planning guide. The evidence presented fails to show that the failure to receive the pre-observation planning guide was detrimental to Respondent. Respondent was required to turn-in her plan book to the administration at Indian Pines. Her plan book was approved by the administration at Indian Pines. Principal Meltzer performed a formal observation of Respondent on December 4, 1997. Prior to the observation, Principal Meltzer had received several complaints from the parents of students in Respondent's VE class regarding Respondent. When there are complaints from parents regarding a teacher, Principal Meltzer's usual procedure is to request the parents to place their complaints in writing and, after receiving the written complaints, to meet with the parents and the teacher to address the specific concerns. Principal Meltzer used this same procedure regarding the parents' complaints against Respondent. Some of the parents' complaints were based upon an allegation of battery of students lodged against Respondent. Principal Meltzer did not provide Respondent with any specific document to assist her in dealing with parents' complaints which may arise. Respondent met with each of the parents and their problems or complaints were resolved. During the investigation of the allegation of battery, Principal Meltzer met with Respondent and the parents of the alleged victim of the alleged battery. The meeting ended with the mother of the alleged victim apologizing to Respondent. In addition, prior to the observation of December 4, 1997, members of the crisis response team (CRT) complained that Respondent was making frequent, inappropriate CRT calls. These complaints were brought to the attention of Principal Meltzer. During the formal observation of Respondent on December 4, 1997, Principal Meltzer used the Florida Performance Measurement System (FPMS) Screening/Summative Observation Instrument. FPMS is the system adopted by Florida's Department of Education for measuring the performance of teachers, using domains and concepts for each domain. Principal Meltzer did not review the VE students' individual education plans (IEPs) prior to the observation. Principal Meltzer's observation of Respondent was that Respondent's teaching was unsatisfactory. On December 8, 1997, Principal Meltzer performed a mid-year evaluation of Respondent. The assessment instrument used by Respondent to evaluate its teachers was the Classroom Teacher Assessment System (CTAS). Using CTAS, teachers received a rating of either a one (a concern) or a two (acceptable) in 16 areas of teacher performance. Respondent was identified as an annual contract (AC) teacher on the CTAS. On the mid-year evaluation, Respondent received a score of 20 and was rated unsatisfactory, with 12 areas of concern being listed. The areas of concern are also referred to as deficiencies. Principal Meltzer based the evaluation on the observation of December 4, 1997, and all occurrences from October 13, 1997. The concerns listed were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; Demonstrates Knowledge of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; Demonstrates Self Control; Demonstrates Effective Working Relationship with Coworkers; Demonstrates Effective Working Relationship with Parents; and Adheres to and Enforces School Policies. Respondent was provided a copy of the FPMS observation and the CTAS mid-year evaluation. The observation of December 4, 1997, contained what can be considered written feedback, but, as written, the feedback could have been better prepared. The mid-year evaluation of December 8, 1997, provided Respondent notice of the deficiencies. At the request of Respondent's union representative, Principal Meltzer agreed to re-observe and re-evaluate Respondent. The union representative noted that it was humanly impossible to correct 12 deficiencies. Principal Meltzer agreed that the second observation and evaluation would replace the first observation and evaluation. Principal Meltzer had the discretion to grant the request and granted the request over the objection of Dr. Jeanne Burdsall, manager of Petitioner's Professional Standards. Principal Meltzer performed the agreed-upon formal observation on January 13, 1998. This observation was also not satisfactory. Respondent received her agreed-upon second mid-year evaluation on January 16, 1998. She received a score of 27 and was rated unsatisfactory, with six areas of concern listed. The areas of concern were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. These six concerns were the most important concerns to Principal Meltzer. Respondent was also placed on a School-Site Assistance Plan (School-Site Plan) on January 16, 1998. The School-Site Plan was developed to address Respondent's deficiencies, together with improvement strategies. No plan was developed for the concern of Demonstrates Effective Working Relationship with Parents because Principal Meltzer concluded that the parents' complaints had been effectively resolved through Respondent's meetings with the parents. Included in the School-Site Plan were agreed-upon dates for reviewing Respondent's progress. The School-Site Plan also provided, among other things, that observations would be conducted to determine whether the deficiencies were corrected. Principal Meltzer reviewed the School-Site Plan with Respondent on January 22, 1998. A copy of the School-Site Plan was provided to Respondent on January 28, 1998. The School-Site Plan was effective through March 10, 1998, which was the latest date that Principal Meltzer had to notify Respondent and Petitioner whether his intent was to recommend Respondent for reappointment. The School-Site Plan was essentially divided into two parts, which were for Respondent to engage in self-study and for her to perform her normal teaching duties. The parties agree that Respondent completed the self-study part of the School-Site Plan. Formal observations were conducted to determine whether Respondent performed her normal teaching duties. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 10, 1998, Pamela Tepsic, Petitioner's Program Specialist, who is also a certified FPMS observer, conducted an observation of Respondent to assist Respondent in improving management of student conduct. Ms. Tepsic's observation was not to be used for evaluative purposes. Some of the matters observed were discussed with Respondent on the same day of the observation. A follow-up conference was scheduled with Respondent for February 19, 1998. Ms. Tepsic made ten written recommendations, which were provided to Respondent on February 20, 1998. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 12, 1998, Linda Long, Petitioner's ESE Team Leader for Area 2, conducted an observation of Respondent for the purpose of assisting Respondent with grouping the IEPs of Respondent's students. Ms. Long wanted to observe Respondent's class before reviewing the students' IEPs. Ms. Long met with Respondent on February 26, 1998, to review the observation and the recommendations made. Ms. Long made four recommendations and provided Respondent with copies of strategies, which were from the State of Florida, Department of Education. During her meeting with Respondent, Ms. Long reviewed the students' IEPs and attempted to place them in groupings because it was difficult for Respondent to engage in direct teaching due to the many groups of children in Respondent's class. Ms. Long's observation was also not to be used for evaluative purposes. On February 17, 1998, Assistant Principal Cardozo conducted a FPMS formative observation of Respondent, focusing on the domain of Instructional Organization and Development, but she did not review the IEP's of Respondent's students prior to the observation. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made specific recommendations, and on February 18, 1998, she met with Respondent and reviewed the observation and recommendations. Assistant Principal Cardozo's recommendations included behaviors to continue or maintain and behaviors to increase. Assistant Principal Cardozo's observation was to be used for evaluative purposes. As part of the assistance provided to Respondent, pursuant to the School-Site Plan, on February 18, 1998, Hugh Brady, Petitioner's Instructional Support Team member of Area 2, conducted an observation of Respondent. He observed, among other things, that many of Respondent's comments to her class were not conducive to teaching VE students. Mr. Brady made several recommendations and conferenced with Respondent on February 25, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Mr. Brady's observation was not to be used for evaluative purposes. On February 19, 1998, Assistant Principal Cardozo conducted a formal FPMS summative observation of Respondent. She observed that Respondent continued to engage in ineffective teaching, including not teaching concepts completely and failing to give definitions, attributes, examples, and nonexamples. Assistant Principal Cardozo made several recommendations and conferenced with Respondent on February 23, 1998, during which the observation and recommendations were discussed and Respondent was provided a copy of the recommendations. Assistant Principal Cardozo's recommendations included behaviors for Respondent to continue or maintain; behaviors for Respondent to increase; and behaviors for Respondent to reduce or eliminate. Her observation of Respondent was to be used for evaluative purposes. On February 26, 1998, Carol Parks was requested to serve as Respondent's peer teacher. On March 2, 1998, Ms. Parks met with Respondent and reviewed Respondent's lesson plans from which suggestions were made by Ms. Parks regarding planning and recording instructional objectives and improvement to Respondent's lesson plans. On March 5, 1998, Assistant Principal Cardozo conducted a formal FPMS formative observation of Respondent, focusing on the domain of Presentation of Subject Matter. Assistant Principal Cardozo observed that Respondent continued many of the ineffective teaching techniques previously observed. Assistant Principal Cardozo made recommendations, and on March 10, 1998, she met with Respondent and reviewed the observation and recommendations. Principal Meltzer failed to comply with the School- Site Plan as to having progress reviews on the specific dates which were set-aside. The dates scheduled for review of Respondent's progress were January 30, 1998, February 20, 1998, and March 6, 1998. On March 10, 1998, the latest date for Principal Meltzer to recommend non-renewal of an employee, Principal Meltzer conducted a CTAS annual evaluation of Respondent, who was identified on the evaluation as an AC employee. The observations considered by Principal Meltzer were the observations conducted by himself on December 4, 1997, and January 13, 1998; and by Assistant Principal Cardozo on February 17, 1998,1 and February 19, 1998. On the annual evaluation, Respondent scored 26 and was rated unsatisfactory, with the same six areas of concern listed as on the mid-year evaluation of January 16, 1998. The six concerns were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Demonstrates Ability to Plan Effectively; Demonstrates Ability to Evaluate Instructional Needs; and Demonstrates Effective Working Relationship with Parents. Principal Meltzer determined that Respondent had failed to correct the six deficiencies. However, as previously indicated, the concern of Demonstrates Effective Working Relationships with Parents was no longer considered a concern, and, therefore, Respondent failed to correct five deficiencies. By letter dated March 10, 1998, Principal Meltzer notified Respondent that, in accordance with Section 231.36, Florida Statutes, and the Settlement Agreement, he was recommending that she not be reappointed for the 1999-2000 school year. In the letter, Principal Meltzer also encouraged Respondent to continue working to improve her performance and, if her performance significantly improved before the end of the 1998-99 school year, he may reconsider his decision. Respondent received this letter on the same date, May 10, 1998. No assistance was provided to Respondent after March 6, 1998. Even though Principal Meltzer had recommended non- reappointment for Respondent, he conducted an observation of Respondent on May 14, 1998. He observed that Respondent continued to need considerable improvement and made several recommendations for improvement. Had Principal Meltzer determined, as a result of his observation of May 14, 1998, that Respondent had made significant improvement, he could have rescinded his recommendation of non-reappointment and recommended reappointment of Respondent. By letter dated June 19, 1998, Petitioner notified Respondent that she was cleared of the allegation of battery of students made against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order and therein: Dismiss the Administrative Complaint filed against Betty Windecker. Reinstate Betty Windecker with a professional service contract, full backpay, and lost benefits. DONE AND ENTERED this 27th day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 27th day of June, 2000.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS 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 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue The issue is whether Petitioner, the Lake County School Board, has just cause to terminate the employment of Respondent, teacher Deborah Harkleroad.
Findings Of Fact Respondent Deborah Harkleroad has been employed by the School Board as a teacher for ten years. She is a member of the Lake County Education Association, the collective bargaining unit for teaching personnel. She is covered by the collective bargaining agreement between the School Board and the Lake County Education Association (the "CBA"), and holds a professional service contract with the School Board pursuant to Section 1012.33, Florida Statutes.1/ During the first two years of her employment, the 2001- 2002 and 2002-2003 school years, Ms. Harkleroad was assigned to Tavares Middle School. At the start of her third year in the fall of 2003, she transferred to Fruitland Park as that school's first elementary literacy coach. During the 2007-2008 school year, Ms. Harkleroad transitioned into teaching a regular third-grade class at Fruitland Park. She remained in that position during the 2009- 2010 school year. The School Board employs a performance evaluation methodology called "Instructional Personnel Performance Appraisal System" or "IPPAS." The standards for evaluation, the methodology to be used by evaluators, and the documents used in the evaluation of instructional personnel are set forth in the IPPAS Handbook. Article XI of the CBA acknowledges that the IPPAS is the vehicle for the evaluation and assessment of teachers employed by the School Board. Section 7 of Article XI of the CBA provides that an IPPAS Joint Committee composed of an equal number of representatives of the School Board and the Lake County Education Association will coordinate and monitor the development and implementation of the assessment process. Section 12 of Article XI of the CBA states that any teacher in danger of dismissal because of poor performance will be afforded the procedure set forth in section 1012.34, Florida Statutes. This procedure is given the colloquial acronym "NEAT," which stands for: N-- Notice of alleged deficiencies which, if not corrected, would lead to dismissal; E-- Explanation to the teacher of alleged deficiencies and suggestions for correction; A-- Assistance rendered by the administration to correct alleged deficiencies; and T-- Time for alleged deficiencies to be corrected. In accordance with the CBA and the IPPAS Handbook, the School Board evaluates teacher performance using an "Observation/Assessment of Professional Performance Standards" form in a procedure called an "Appraisal I." The Appraisal I is the standard evaluation for teachers employed by the School Board. The Observation/Assessment form contains 6 sections and subsections. The subsections are further divided into sub- subsections. The evaluator gives the teacher a score of "acceptable" or "unacceptable" in each sub-subsection. The overall evaluation is graded on a 12-point scale, one point for each of the 12 subsections. If the teacher's performance is graded unacceptable in even one sub-subsection, then the teacher receives an unacceptable score for the overall subsection. The only acceptable overall score on the Observation/Assessment form is a perfect 12. If a teacher does not receive an acceptable score in each of the 12 subsections, then the teacher's overall performance is deemed deficient. A deficient Appraisal I triggers the NEAT procedure and further evaluations. The IPPAS provides a voluntary alternative evaluation for experienced teachers who have received scores of 12 on the Appraisal I for the two immediately preceding years and have a professional service contract with the School Board. This alternative is called "PG-13," and allows the teacher to select a “professional growth” objective for the school year, work with an administrator in devising a strategy for attaining the objective, and demonstrate the attainment of the objective. Finally, the IPPAS contains an evaluation instrument called a "Professional/Personal Action Report Relating to Work Experience," or "Appraisal II." The Appraisal II is used to document individual instances of deficiency in a teacher's work performance that have been identified outside of the formal evaluation process. In order to become eligible for the voluntary PG-13, a teacher must have received no Appraisal II reports during the two years immediately preceding entry into PG-13. In order to remain eligible for the PG-13, a participating teacher must continue to meet the standard competency level for teaching performance, which includes receiving no Appraisal II reports. Since the 2004-2005 school year, Ms. Harkleroad had participated in the PG-13 evaluation process every year except 2007-2008, when she had back surgery and was unable to complete her PG-13 project. For the 2007-2008 school year, Ms. Harkleroad received an Appraisal I score of 12. On March 19, 2009, Ms. Harkleroad received an Appraisal II report from the principal of Fruitland Park, Melissa DeJarlais. The "Area of Concern" listed on the Appraisal II form was "Personal Characteristics and Professional Responsibilities." Dr. DeJarlais wrote the following explanation of Ms. Harkleroad's deficient performance: On 3-5-09, teachers required to administer the FCAT assessment were mandated to attend the annual FCAT administration training. Mrs. Harkleroad was observed nodding off and/or sleeping during this training. She later explained that she did not feel well and it was possible that her prescribed medication was causing her to be overly sedated. As a precautionary measure, Mrs. Harkleroad's testing responsibilities were changed to that of a proctor thus requiring us to assign another instructional person to her classroom for the express intention of administering the FCAT. Mrs. Harkleroad did not perform her proctoring duties and instead spent time working on school related activities not germane to FCAT testing. These activities included printing her substitute or lesson plans while students were actively taking the FCAT assessment thus compromising the testing environment. At the time she received the Appraisal II, Ms. Harkleroad wrote the following response: In response to the Professional/Personal Action Report dated 3-19-09, I was running a temperature of 102.6 and my blood pressure was dipping dangerously low due to being sick on 3-5-09. I should have taken a sick day on this date, but I didn't due to the diminishing amount of teaching time left before the FCAT. I did fully perform my duties as a proctor for the math FCAT testing, and I did not at any time perform the activities alleged. During the time when I was printing my students' cloze practice reading assignments, no students were actively taking the test. At the hearing, Dr. DeJarlais offered no first hand testimony regarding the allegation that Ms. Harkleroad did not perform her proctoring duties and printed documents in the classroom while the FCAT was being administered. She testified that she relied on the reports of the test administrator and the testing coordinator in issuing the Appraisal II to Ms. Harkleroad. Ms. Harkleroad testified that, unlike the previous principals she had worked for at Fruitland Park, Dr. DeJarlais had never liked her or appreciated the extra work she did in compiling data that tracked student performance on the FCAT and other standardized tests. Ms. Harkleroad testified that she had always received "rave reviews" for the extra work she did in creating and maintaining the school wide data bank for tracking standardized test scores. She resented the fact that Dr. DeJarlais neglected to rave over the data notebooks when Ms. Harkleroad presented them to her. Ms. Harkleroad felt personally snubbed and concluded that Dr. DeJarlais did not like her. As to the events of March 5, 2009, Ms. Harkleroad surmised that the test administrator was trying to make "brownie points" with Dr. DeJarlais by maliciously reporting falsehoods about Ms. Harkleroad's actions in the classroom. Ms. Harkleroad asserted that the administrator was a friend of Dr. DeJarlais, and that the principal simply took the administrator's word for what happened without conducting any further investigation. Ms. Harkleroad disputed the incident to Dr. DeJarlais to the point of crying, and she was so upset she had to leave school early that day. She testified that at the time she was unaware that the CBA allowed her to file a union grievance over the Appraisal II. Neither party called the test administrator, Kimberly Belcher, to testify. Based on the testimony, the undersigned is not inclined to second-guess Dr. DeJarlais' decision to take the word of Ms. Belcher as to what occurred in the classroom on March 5, 2009. Ms. Harkleroad offered only speculation as to any motive Ms. Belcher had to concoct a story about Ms. Harkleroad's actions during the FCAT. To accept Ms. Harkleroad's version of events, it is necessary to believe not only that Dr. DeJarlais was out to get Ms. Harkleroad, but that Dr. DeJarlais' vendetta against Ms. Harkleroad was such common knowledge that Ms. Belcher knew she could win "brownie points" by lying about the teacher to the principal. The evidence does not support such a chain of inferences. Ms. Harkleroad testified that during the meeting about the Appraisal II, Dr. DeJarlais emphasized that she would no longer be eligible for the PG-13 evaluations and would have to revert to the Appraisal I evaluation. Ms. Harkleroad stated, "I knew then, when she told me that, that she was out to destroy my career." This extraordinary statement was premised on Ms. Harkleroad's assertion that she has a severe panic disorder that renders her unable to withstand the situation presented by an Appraisal I, in which she must teach while an evaluator sits in the room and judges her performance. Ms. Harkleroad asserted that Dr. DeJarlais was aware of this condition, and purposely contrived to force Ms. Harkleroad back into the Appraisal I process in order to get rid of her. At this point, it is useful to digress from the main narrative to provide a brief history of Ms. Harkleroad's medical travails. She testified that she has a severe form of stress or panic disorder that makes her paranoid and unable to function in situations in which she thinks people are judging her. Earlier in her career, she was able to control the panic attacks with a prescribed medication, Xanax (alprazolam), and was able to perform well in Appraisal I situations. At some unspecified time prior to the 2005-2006 school year, Ms. Harkleroad underwent spinal fusion surgery. During the 2005-2006 school year, Ms. Harkleroad was involved in an incident requiring her to restrain a kindergarten student who was throwing wooden chairs in the library. Ms. Harkleroad's back was injured. Ms. Harkleroad alleged that the School Board's contract workers' compensation physician misdiagnosed the injury and sent her back to work. Two years later, another physician examined Ms. Harkleroad's MRI from the incident and determined that her fusion had been shattered. During the 2007-2008 school year, Ms. Harkleroad had major back surgery that kept her away from school for 12 weeks. When she returned to work during the spring semester of 2008, she was in a body cast, followed by approximately five months in a brace. Ms. Harkleroad testified that the damage to her back was so severe that it could not be completely repaired. She was subject to muscle spasms due to pressure on her sciatic nerve. The pain became so severe that in February 2009 she began seeing a physician for pain management. The physician prescribed what Ms. Harkleroad called "pretty heavy duty" medications such as Oxycontin (oxycodone). Ms. Harkleroad's physicians advised her that Xanax cannot be taken with Oxycontin. Therefore, she was forced to forego her panic disorder medication after February 2009. Dr. DeJarlais came to Fruitland Park at the start of the 2008-2009 school year. Ms. Harkleroad was unsure how much Dr. DeJarlais knew about her medical history, though she specifically recalled telling Dr. DeJarlais that she was the teacher who had back surgery and came back in a body cast. Ms. Harkleroad also recalled that, in her first conversation with the new principal, she told Dr. DeJarlais about her panic disorder. Dr. DeJarlais testified that she was unaware that Ms. Harkleroad claimed any disabilities. She knew that Ms. Harkleroad took pain medications for her back, but knew no specifics about them. Ms. Harkleroad testified that at the time of the FCAT administration meeting on March 5, 2009, she was sick and had just started on the pain management medications. She had taken Nyquil for a cold on top of the Oxycontin, and the combination caused her to fall asleep at the meeting. As noted above, she absolutely denied the other statements in the Appraisal II. Shortly after receiving the Appraisal II, Ms. Harkleroad was involved in an automobile accident that kept her out of work for the remainder of the 2008-2009 school year. She had further surgical procedures on her back and remained on pain medications as the 2009-2010 school year began. Patricia Nave, a veteran administrator, arrived at Fruitland Park as assistant principal at the start of the 2009- 2010 school year. Dr. DeJarlais assigned Ms. Nave to conduct the Appraisal I performance evaluations of Ms. Harkleroad. Ms. Nave did not know Ms. Harkleroad before August 2009, and testified she was not aware that Ms. Harkleroad had anxiety issues. On February 18, 2010, from 12:45 p.m. until 1:45 p.m., Ms. Nave observed Ms. Harkleroad and scored her on the Appraisal I form. Ms. Nave gave Ms. Harkleroad a score of 10 on the appraisal, rating her unsatisfactory in two of the 12 subsections. Under the section "Teaching Procedures," Ms. Harkleroad was rated unsatisfactory in the sub-subsection titled "Gives clear and explicit directions" within the subsection titled "Displays skills in making assignments." Under the section "Classroom Management," Ms. Harkleroad was rated unsatisfactory in the sub-subsections titled "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." In the area of Teaching Procedures, Ms. Nave testified that in making an assignment, the teacher is expected to use appropriate vocabulary. The teacher tells the students what the assignment is and when it is due, then checks with the students to ensure they comprehend the assignment before releasing them to do the work. Ms. Harkleroad did not make a comprehension check. She simply told the students what to do. In the area of Classroom Management, Ms. Nave had "many, many concerns" regarding Ms. Harkleroad's "conscious modeling to modify attitudes and behaviors." Ms. Harkleroad made unacceptable comments to students throughout the lesson, such as: "I don't understand what you're not getting, probably because you're not paying attention," "Your rudeness scale is going up," and "You are all just counting, not paying attention to what you are counting." Ms. Nave found that Ms. Harkleroad was not setting a proper example to the students. The teacher is expected to be respectful and to set an example by being fair. Ms. Harkleroad was neither consistent nor fair. At times, she would scold the students for calling out without raising their hands, but at other times she would allow them to call out. Some children were walking around the room when they should have been sitting down for the lesson. Ms. Harkleroad admonished some of the students for walking around but allowed others to do it. She allowed the students to engage in off-task behavior. Ms. Harkleroad testified that in her experience, evaluations last for about 35 minutes. She testified that she was doing fine for the first 35 minutes of Ms. Nave's evaluation. However, when Ms. Nave stayed beyond the 35-minute mark, Ms. Harkleroad began to panic, believing that Ms. Nave intended to stay until she could find something wrong. Her performance fell apart in the latter part of the hour. Ms. Harkleroad stated that she told Ms. Nave about her panic disorder after the evaluation. Ms. Nave noted no dramatic change in Ms. Harkleroad's performance from the first half to the second half of her one- hour observation. Ms. Nave also had no recollection of Ms. Harkleroad discussing her panic disorder at any time, before or after the evaluation. When a teacher receives a deficient Appraisal I, the NEAT procedures require that the teacher also receive a Prescription/Assistance form to outline areas for improvement, recommendations on how to accomplish those improvements, and a time period for a follow-up observation. Ms. Nave met with Ms. Harkleroad on February 22, 2010 to go over the Prescription/Assistance form. Ms. Nave noted the areas of deficient performance and recommended that Ms. Harkleroad review sections of the IPPAS manual that prescribe methods for the areas in which she had been found deficient and watch certain DVDs on effective teaching methods. Ms. Nave gave Ms. Harkleroad four weeks, rather than the usual three weeks, to correct the deficiencies and undergo another observation. To further lessen the pressure on Ms. Harkleroad, Ms. Nave exercised her prerogative to use the February 18, 2010, Appraisal I as an "observation" rather than a formal appraisal that would be counted against Ms. Harkleroad. School Board records indicated that Ms. Harkleroad checked out the recommended DVDs from the Fruitland Park library. Ms. Harkleroad testified that she watched the DVDs. Ms. Nave performed a second Appraisal I on Ms. Harkleroad on March 26, 2010. This appraisal also resulted in a total score of 10. On this appraisal, deficiencies were found under the sections titled "Classroom Management" and "Presentation and Knowledge of Subject Matter." As to Classroom Management, Ms. Harkleroad was rated unsatisfactory in the same sub-subsections as on the February 18, 2010, appraisal: "Applies the established rules and standards for behaviors consistently and equitably" and "Provides conscious modeling to modify attitudes and behaviors" within the subsection titled "Creates and maintains positive environments in which students are actively engaged in learning." As to Presentation and Knowledge of Subject Matter, Ms. Harkleroad's performance was found unsatisfactory in the sub-subsection titled "Uses questioning techniques" under the subsection titled "Communicates and presents subject matter in a manner that enables students to learn." Ms. Nave testified that in the area of questioning techniques, the preferred technique is to ask a question, wait for the students to process the question, and then call on one student to answer the question. Ms. Harkleroad was asking "multiple questions," meaning that she would ask a question, then ask another question or ask the same question in a different way, before the students had a chance to respond. Ms. Nave stated that teachers are counseled not to ask multiple questions because it confuses the children. Ms. Nave stated that Ms. Harkleroad failed to exhibit another aspect of proper questioning. A teacher should ask a question, and then call the name of a student to answer the question. Asking the question before calling on a student ensures that the whole class pays attention to the question. If the teacher calls on one student, then asks the question, the other children are off the hook and feel free to pay less attention. Ms. Harkleroad frequently called on students before asking a question. Ms. Harkleroad agreed that her performance during this evaluation was "awful." Ms. Nave had come in to the classroom a day or two before and stayed for about 25 minutes. According to Ms. Harkleroad, "Everything went great. I thought that was my evaluation. A couple days later, here she comes in again. And immediately that's like, 'Okay, what are they doing? They couldn't find anything wrong that time, so they're coming in to find something wrong this time?'" She had a panic attack, and knew that the evaluation was "horrible." Again, Ms. Nave made no note of the dichotomy claimed by Ms. Harkleroad. Her observations were consistent over time. Ms. Nave saw no "great" lessons taught by Ms. Harkleroad. Nonetheless, Ms. Nave continued to encourage Ms. Harkleroad to improve her performance and genuinely believed that "she could get it together" with hard work and a sincere commitment to the recommendations she was receiving. On March 29, 2010, Ms. Nave completed a Prescription/Assistance form and reviewed it with Ms. Harkleroad. Ms. Nave again stated the areas of deficient performance and listed sections of the IPPAS manual that addressed Ms. Harkleroad's deficiencies. Ms. Nave also obtained the assignment of Linda Bradley, a School Board employee who works as a mentor to beginning teachers, to visit Ms. Harkleroad's class every week to observe and assist her with her ongoing remediation strategies. The Prescription/Assistance form provided that Ms. Harkleroad would correct her deficiencies by the end of the school year, June 9, 2010. Ms. Harkleroad would then go through a 90-day performance probation period during the upcoming school year. Also on March 29, 2010, Dr. DeJarlais issued a memorandum to Ms. Harkleroad titled "Performance Probation" that read as follows: Pursuant to the provisions of Florida Statutes 1012.34, I am writing to inform you that you have performance deficiencies in the areas of Classroom Management and Presentation and Knowledge of Subject Matter. Based on the deficiencies, I am placing you on performance probation for 90 calendar days beginning on 8-23-2010. The 90 calendar days will end on November 23, 2010. By letter dated March 31, 2010, Superintendent of Schools Susan Moxley warned Ms. Harkleroad of the consequences of failure to correct her performance deficiencies: Pursuant to Florida Statutes 1012.33, I am writing to inform you that performance deficiencies have been identified by your principal. I understand that your principal has already met with you and made recommendations for improvement. Your principal will provide assistance to help you correct the performance deficiencies during the subsequent school year. Please be advised that your contract with the Lake County Schools District may be terminated without correction of these performance deficiencies. Pursuant to s. 1012.33, you may request to meet with the Superintendent or her designee for an informal review of the determination of unsatisfactory performance. You may also request to be considered for a transfer to another appropriate position under a different supervising administrator for the subsequent school year. Such transfer, however, does not reverse this year's identification of performance deficiencies. Both Ms. Nave and Dr. DeJarlais testified as to other problems with Ms. Harkleroad's performance in the classroom. The parents of two children in Ms. Harkleroad's class complained that their children were receiving too many disciplinary referrals to the office. Upon investigation, the administrators agreed with the parents and Ms. Harkleroad was counseled on the issue. As an alternative to referring minor disciplinary cases to the office, teachers at Fruitland Park are allowed to send students to another teacher's classroom for a time. Placed in a strange class with students who do not know him, the recalcitrant student usually will calm down and quietly do his work. Ms. Harkleroad's grade level peers complained to Ms. Nave that Ms. Harkleroad took excessive advantage of this option, sending children to their classrooms more frequently than should have been necessary. Ms. Nave's major problem with Ms. Harkleroad was her classroom management, her "with-itness," in Ms. Nave's terminology. Ms. Harkleroad too often appeared unaware of the things she was saying to the children, and unaware of what the children were doing in the classroom. She would not notice that children were up and walking around the classroom during lessons. Ms. Nave stated that during her observations, as many as 12 out of 22 children in Ms. Harkleroad's classroom would not be focused on the lesson, and Ms. Harkleroad did nothing to put them back on task. Dr. DeJarlais noted that some parents had complained about Ms. Harkleroad's odd behavior at a student assembly. Her speech was slurred, she called out the same student's name more than once, and she seemed disoriented. Dr. DeJarlais witnessed the assembly, and agreed with the parents that there was a problem. She spoke to Ms. Harkleroad about maintaining a sense of awareness on stage.2/ Dr. DeJarlais mentioned several other minor incidents. In the spring of 2010, Ms. Harkleroad did not fill out her report cards correctly. She once walked into the wrong grade level meeting and had to be directed to the right one. There was an incident in which she placed a child on the floor during a disciplinary timeout, and Dr. DeJarlais counseled her to use a desk. During a walkthrough, Dr. DeJarlais saw Ms. Harkleroad teaching the wrong subject. In each of these instances, Dr. DeJarlais counseled Ms. Harkleroad rather than giving her an official disciplinary or performance write-up. Ms. Harkleroad was convinced that Dr. DeJarlais was intentionally using her panic disorder to get rid of her. This was based partly on a conversation Ms. Harkleroad claimed to have overheard in which Dr. DeJarlais referred to Ms. Harkleroad as a "liability" because of her use of pain medications. Ms. Harkleroad believed that Dr. DeJarlais thought of her as a drug addict. She testified that Dr. DeJarlais made frequent comments that insinuated that she was an addict, asking whether she had a "problem" or needed "counseling." Ms. Harkleroad believed these insinuations were intended to add to the pressure she felt at school and therefore increase the anxiety and panic she would feel during her evaluations. Dr. DeJarlais denied ever calling Ms. Harkleroad an addict or even suggesting such a thing. She did recall that she and Ms. Nave had conversations with Ms. Harkleroad about her nodding off in front of the class, and that Ms. Harkleroad mentioned that she might need to adjust her medications. Dr. DeJarlais did not pry into the kinds of medications Ms. Harkleroad was taking. Ms. Harkleroad spoke to her several times in general terms about seeking help for medical conditions such as back pain. Dr. DeJarlais' only suggestion regarding counseling came when Ms. Harkleroad told her that she feared she was having a nervous breakdown. Dr. DeJarlais credibly denied doing anything to intimidate or humiliate Ms. Harkleroad. Ms. Nave confirmed that she had seen Ms. Harkleroad appear to be sleeping or nodding off while standing in front of the class. At the time, Ms. Nave was unaware that Ms. Harkleroad took prescribed pain medications. Ms. Nave stated that Ms. Harkleroad was unaware that she was nodding off and denied it until Dr. DeJarlais confirmed that two other persons had reported seeing Ms. Harkleroad nod off. At that point, Ms. Harkleroad stated she would go see a physician. Ms. Harkleroad testified that her physician assured her that she could not have been falling asleep on her feet. The physician stated that one of her medications may have been causing mini seizures that resembled nodding off. Ms. Harkleroad testified that she passed this information on to both Dr. DeJarlais and Ms. Nave, though neither of the administrators recalled such a conversation. Given her feelings about Dr. DeJarlais, it was not surprising that Ms. Harkleroad chose the option of transferring to another school for the 2010-2011 school year. Ms. Harkleroad testified that she chose a transfer only after Dr. DeJarlais made it clear that she would prefer for Ms. Harkleroad to move on to another school. Dr. DeJarlais denied expressing such a preference. Ms. Nave recalled that she and Dr. DeJarlais met with Ms. Harkleroad to discuss her options for the 2010-2011 school year, which included transferring to another school or trying to work through the probationary process at Fruitland Park. Ms. Nave testified that when the discussion turned to the 90-day probationary period, Ms. Harkleroad mentioned that she might be having a nervous breakdown. This conversation occurred near the end of the school year, and was the first mention of any mental problems that Ms. Nave could recall. Ms. Harkleroad testified that the "nervous breakdown" conversation was more complicated than Dr. DeJarlais and Ms. Nave indicated. Ms. Harkleroad stated that she told the administrators that she was having multiple anxiety attacks, one after the other, and that she would have a nervous breakdown "if they kept on pushing me and pushing me." Though she had requested assignment to a middle school, Ms. Harkleroad was transferred to Beverly Shores Elementary School ("Beverly Shores") for the 2010-2011 school year and assigned to a third-grade classroom. At the end of the 2009-2010 school year, the School Board notified Jeffrey Williams, the principal at Beverly Shores, that Ms. Harkleroad would be joining his staff in August 2010. The notice informed Mr. Williams that Ms. Harkleroad was on performance probation, and that her issues were classroom management and presentation of subject matter. Mr. Williams also received a phone call from Dr. DeJarlais to discuss the transfer. Dr. DeJarlais did not go into the details surrounding Ms. Harkleroad's probation aside from stating that she believed the move would be good for Ms. Harkleroad. Mr. Williams contacted Ms. Harkleroad and suggested they meet to discuss her transition to Beverly Shores. Ms. Harkleroad met with Mr. Williams at his office. Ms. Harkleroad told Mr. Williams that she had received a deficiency in her IPPAS evaluation and had requested a transfer, though Beverly Shores was not really where she wanted to be. Ms. Harkleroad mentioned that she had a back problem. Mr. Williams did not recall anything in the conversation concerning panic attacks, an anxiety disorder, or any other condition that would hinder Ms. Harkleroad's ability to pass an Appraisal I evaluation. Ms. Harkleroad denied telling Mr. Williams that she did not want to be at Beverly Shores, though she conceded that she told him she would rather be in a middle school because her back problems made it difficult to keep up with younger children. Ms. Harkleroad testified that she told Mr. Williams about her panic disorder, and further told him that she could not take medication for it because of the medication she took for her back pain. She requested that Mr. Williams use the PG- evaluation tool, or record her class, anything other than having people come into her classroom to judge her. She said that Mr. Williams replied that the rules required the use of the Appraisal I. Mr. Williams did not see Ms. Harkleroad again until school started in August 2010. He assigned assistant principal Tanya Rogers to be the supervising administrator handling all issues related to Ms. Harkleroad's job performance. During the first 90 days of the 2010-2011 school year, Mr. Williams limited his involvement to walkthroughs of Ms. Harkleroad's classroom. Ms. Rogers is an experienced assistant principal who has performed many teacher evaluations under the provisions of the IPPAS and the CBA. Ms. Rogers knew that Ms. Harkleroad was on performance probation, and saw to it that her Prescription/Assistance form from Fruitland Park was implemented at Beverly Shores. Linda Bradley was retained as Ms. Harkleroad's instructional coach, and Ms. Harkleroad was offered classes through the school's learning resource center. Ms. Rogers conducted frequent classroom walkthroughs and met with Ms. Harkleroad to assist her in preparing for her evaluation. Upon her arrival at Beverly Shores in August, Ms. Harkleroad discovered that her classroom was "filthy. There were mouse droppings all over. It took four of us six hours to get the room just clean enough that I'd bring my stuff in there. No air conditioning. . . It was almost six weeks before that air conditioning was fixed." Mr. Williams testified that the classroom was clean when Ms. Harkleroad arrived at the school in August 2010. Ms. Harkleroad estimated that the air conditioning was not repaired until September 27, and testified that the temperature reached 100 degrees in the afternoons. She had complained to Ms. Rogers but nothing was done until the date of the second observation by Ms. Rogers, when Ms. Harkleroad repeatedly noted how hot it was in the classroom and how difficult for the students to concentrate on their lessons. Ms. Harkleroad also testified that there was a "horrible" burning smell in the classroom. She complained to Mr. Williams about it. Eventually, on December 9, 2010, the Lake County Health Department came to the school to investigate the source of the smell. Ms. Harkleroad denied having called the Health Department. Ms. Rogers agreed that Ms. Harkleroad complained about the air conditioning in September. However, Ms. Rogers testified that she entered a work order and that the air conditioning was repaired on September 7. Ms. Rogers recalled no complaints about a smell in the classroom, though she did acknowledge that the Health Department was at the school on December 9, and that it found everything in Ms. Harkleroad's classroom to be in satisfactory condition. Mr. Williams recalled that Ms. Harkleroad complained about an odor in her classroom. Mr. Williams was convinced that Ms. Harkleroad had called the Health Department for the simple reason that the inspectors went straight to her classroom when they arrived at the school. However, Mr. Williams had no firm evidence that Ms. Harkleroad made the call and no way of knowing whether a concerned parent had made the call. In the absence of any stronger evidence, Ms. Harkleroad's denial is credited. There was no indication that either Ms. Rogers or Mr. Williams took retaliatory action against Ms. Harkleroad for her various complaints about conditions in her classroom, or that the performance appraisals Ms. Harkleroad received at Beverly Shores were based on anything other than her performance in the classroom. As part of her efforts to help Ms. Harkleroad prepare for her Appraisal I, Ms. Rogers conducted two classroom observations using the "Screening/Summative Observation Instrument" of the Florida Performance Measurement System ("FPMS"). This form was developed by the Florida Department of Education to enable an observer to calculate the frequency of effective and ineffective teaching techniques. In the first observation, conducted on September 7, 2010, Ms. Rogers found performance deficiencies in the areas of classroom management and presentation and knowledge of subject matter. In the second observation, conducted on September 27, 2010, Ms. Rogers found performance deficiencies in the same two areas, particularly in the area of managing student conduct. Ms. Rogers testified that she saw a great deal of choral reading and review of prior knowledge taking place in the classroom but observed no teaching of new content. She also noted that Ms. Harkleroad had a punitive approach to classroom management, and took a sarcastic tone with the children that tended to escalate discipline problems rather than calm them. Based on her observations, Ms. Rogers wrote a Prescription/Assistance form on September 29, 2010, and met with Ms. Harkleroad to go over the needed improvements. Ms. Rogers recommended weekly visits by Ms. Bradley, who would conduct FPMS observations in the problem areas and provide specific feedback to Ms. Harkleroad. Ms. Rogers also recommended specific classes offered at the School Board's staff development training facility: "Increasing Student Engagement," "Motivating Students," and "Classroom Management for Elementary Teachers." Ms. Rogers wrote that Ms. Harkleroad "will correct these behaviors by October 25, 2010, two weeks after staff development opportunity." Ms. Harkleroad testified that she attended one of the recommended classes, but found that it was unrelated to anything occurring in her classroom. She declined to attend the other classes. As the end Ms. Harkleroad's 90-day performance probation approached, Ms. Rogers notified Ms. Harkleroad of her intent to perform the Appraisal I. Ms. Harkleroad requested a conference with Ms. Rogers prior to the evaluation. At the conference, Ms. Harkleroad requested that Mr. Williams perform the Appraisal I evaluation. Ms. Rogers testified that Ms. Harkleroad told her that she found it difficult to respect women in positions of authority. Ms. Harkleroad believed that women should be at home taking care of their children, and that society's problems could be traced to women working outside the home. Ms. Rogers found this logic confusing because Ms. Harkleroad was herself a woman working outside the home. When Ms. Rogers pointed this out, Ms. Harkleroad responded that she did not have children. Ms. Rogers responded that her own children were grown and not living with her. Ms. Harkleroad asked Ms. Rogers whether her daughter stayed home with her children. Ms. Rogers replied that her daughter worked. Ms. Harkleroad said, "See, that's what I'm talking about. That's what's wrong with society." At the hearing, Ms. Harkleroad testified that her request had nothing to do with any general complaint about women in the workplace.3/ Her problem was with Ms. Rogers, whom she found to be unreasonably critical. Ms. Rogers conducted her first observation before Ms. Harkleroad even had a chance to learn the names of the children in her classroom, then told Ms. Harkleroad that she was an incompetent teacher, which caused Ms. Harkleroad to lose all respect for her. Thus, she told Ms. Rogers that she preferred to have Mr. Williams perform her Appraisal I. Ms. Rogers' version of the conference with Ms. Harkleroad is credited. Mr. Williams testified that Ms. Rogers came to him and told him that Ms. Harkleroad did not respect women in authority. Ms. Harkleroad did not think she could get a fair evaluation from Ms. Rogers and requested that Mr. Williams perform the appraisal. Without delving too deeply into the reasons for Ms. Harkleroad's request, Mr. Williams agreed to perform the Appraisal I. Ms. Rogers and Mr. Williams agreed that he declined to take the file that Ms. Rogers had developed on Ms. Harkleroad. He wanted a clean slate, and did not want to be influenced by the prior observations of Ms. Rogers. He wanted to evaluate what was happening in the classroom without preconceptions. Mr. Williams intended to evaluate Ms. Harkleroad as he would any other teacher. He entered Ms. Harkleroad's classroom several times during the week before the evaluation and performed a lengthy walkthrough to assess the overall learning environment. Mr. Williams conducted the Appraisal I on or about November 22, 2010.4/ He gave Ms. Harkleroad a score of 11. Mr. Williams found a deficiency in the section titled "Presentation and Knowledge of Subject Matter." Ms. Harkleroad was rated unsatisfactory in the subsection titled, "Communicates and presents subject matter in a manner that enables students to learn." This subsection contains seven sub-subsections, and Mr. Williams graded Ms. Harkleroad unsatisfactory in six of them: "Treats concepts/cause and effect/or states and applies rules;" "Teacher directed/guided practice is provided;" "Uses questioning techniques;" "Directs lesson;" "Provides periodic review;" and "Poses problems, dilemmas, and questions to promote critical thinking." Mr. Williams found these deficiencies because there was no direct instruction taking place in the classroom that would satisfy those areas of observation. Shortly after the evaluation, Ms. Harkleroad told him that she "just didn't have it today" and that she knew her performance had not been good. Ms. Harkleroad testified as to her problems with Mr. Williams' evaluation. These problems were related to her panic disorder and to an illness she claimed she had on the day of the evaluation. When Mr. Williams did his preparatory walkthrough of her classroom on the Friday before the evaluation, Ms. Harkleroad mistakenly believed that he was conducting the Appraisal I. As she had with Ms. Nave's earlier pre-evaluation classroom visit, Ms. Harkleroad claimed that the lesson went very well. She was jubilant that she had passed the evaluation. Mr. Williams noted no variance between what he observed on his walkthroughs of Ms. Harkleroad's classroom and what he observed during the November 22, 2010, Appraisal I. On the following Monday morning, Ms. Harkleroad was at an IEP meeting when she started pouring sweat and finding it difficult to breathe. The problem became worse as the day went by. She told Mr. Williams how sick she felt and that she might have to go home. Less than 30 minutes later, Mr. Williams appeared in her classroom to conduct the Appraisal I. Ms. Harkleroad stated that Mr. Williams' arrival "just blew it." She knew then that "all they wanted to do was fire me. They didn't care how they did it." After the evaluation, Ms. Harkleroad's husband picked her up from school because she was too ill to drive. Ms. Harkleroad testified that she was diagnosed with bacterial pneumonia. She did not return to school until the Monday after Thanksgiving, November 29, at which time Mr. Williams met with her to review her evaluation. Mr. Williams testified that Ms. Harkleroad said nothing to him about being sick and that he would have rescheduled the evaluation had he known. Before and during the evaluation, she showed no signs of illness. It was only after the evaluation, when they were discussing her poor performance, that Ms. Harkleroad appeared to become ill. Mr. Williams called the school nurse and Ms. Harkleroad's husband. Ms. Harkleroad later told him she had been hospitalized, but Mr. Williams had no firsthand knowledge of her medical treatment. On November 29, 2010, Mr. Williams conducted a post- evaluation conference with Ms. Harkleroad. He presented her options, which at that point were limited to resigning her position or facing formal termination procedures by the School Board. To Mr. Williams' surprise, Ms. Harkleroad chose termination. He was surprised because termination would likely end Ms. Harkleroad's teaching career. When Mr. Williams inquired further, Ms. Harkleroad told him that she chose termination in order to preserve her unemployment benefits. At the hearing, Ms. Harkleroad testified that she chose termination because resigning would have constituted an admission she had done something wrong. As to aspects of Ms. Harkleroad's performance outside the formal evaluation, Mr. Williams stated that there had been a couple of parent complaints. One child was moved out of her classroom due to what the parent termed "poor communication" with Ms. Harkleroad. Mr. Williams had to tell Ms. Harkleroad to stop asking the child why he had moved from her class. In a memorandum to Dr. Moxley dated December 9, 2010, and titled "Recommendation of Termination," Mr. Williams wrote as follows, in relevant part: Pursuant to Florida Statutes 1012.34, I am writing to inform you that Mrs. Deborah Harkleroad has completed his/her 90-calendar day performance probation and has failed to correct his/her performance deficiencies. I do not believe that Mrs. Harkleroad can correct said deficiencies and his/her employment should be terminated. I have complied with all applicable provisions of Florida Statutes 1012.34.... On the morning of December 13, 2010, Ms. Harkleroad wrote the following email to Dr. Moxley: Before a final decision is made on my employment status, I would like the opportunity to meet with you in order to discuss my current situation. It is my contention that I was performing my duties as a teacher in a manner that supported Literacy First guidelines on the date and time my evaluation was conducted. If I had been doing any type of activity other than something similar to what I was doing, I would not have been in compliance with established guidelines. Literacy First is a research-based, data-driven, comprehensive program designed to accelerate reading achievement. Beverly Shores implements the Literacy First program,5/ which includes explicit directives as to what should take place in whole group and small group instruction. Ms. Harkleroad did not raise Literacy First concerns with Mr. Williams at the time of the evaluation or even at the November 29 conference. After the fact, however, she contended that during the hour in which Mr. Williams conducted the evaluation, the Literacy First schedule called for her to perform whole group activities, which do not include "instruction." The children were building fluency by engaging in group reading practice. Had Mr. Williams stayed through the next hour, he would have seen explicit instruction when the class was broken into small groups. Ms. Harkleroad's argument that Literacy First mandated that she not teach the class is not credited. As early as her first observation on September 2, 2010, Ms. Rogers had noted that Ms. Harkleroad's whole group method appeared limited to "echo reading" rather than any of the other various strategies called for by the Literacy First program. Ms. Rogers did not formalize this observation in writing because echo reading is a legitimate Literacy First strategy, and she wanted to give Ms. Harkleroad the benefit of the doubt. Mr. Williams understood Ms. Harkleroad's class schedule, and as principal of Beverly Shores he understood the Literacy First guidelines. When he conducted his evaluation, he knew that Ms. Harkleroad's class was involved in whole group reading. It was in this context, with a full understanding of what should have been happening under Literacy First, that Mr. Williams concluded that no instruction took place during his observation. Ms. Harkleroad was not leading the class. Dr. Moxley did not meet with Ms. Harkleroad. By letter dated December 13, 2010, Dr. Moxley informed Ms. Harkleroad that, pursuant to section 1012.34, Florida Statutes, Ms. Harkleroad had failed to correct performance deficiencies identified by her principal and Dr. Moxley intended to recommend to the School Board that Ms. Harkleroad's employment be terminated as of January 10, 2011. At the hearing, Ms. Harkleroad contended that she had placed the School Board on notice of her panic disorder before the 2009-2010 school year, and that she specifically requested that school administrators use the PG-13 evaluation process as an accommodation to her disability. Ms. Nave recalled Ms. Harkleroad requesting that she be allowed to use the PG-13 evaluation. Ms. Nave stated that Ms. Harkleroad gave no reason for the request, other than an assertion that she had earned the right not to go through the Appraisal I process. Ms. Harkleroad testified that she also pleaded with Mr. Williams to allow her to use the PG-13 evaluation because of her panic disorder. Mr. Williams flatly and credibly denied that any such conversation occurred.6 Dr. DeJarlais had no recollection of Ms. Harkleroad asking for the PG-13 evaluation. She testified that Ms. Harkleroad made no complaints about the Appraisal I procedure until after the evaluation had been completed. The testimony of the four administrators permits the inference that, far from being open with her superiors about her mental and physical problems, Ms. Harkleroad tended to downplay them because of the intense scrutiny she felt she was receiving regarding her job performance. On several occasions, Ms. DeJarlais and Ms. Nave made tentative inquiries into Ms. Harkleroad's emotional well being only to have Ms. Harkleroad sidestep their questions with vague assurances that she was seeing a doctor.7/ Out of respect for her privacy, the administrators left it at that and focused on her classroom performance. The first duty of the school administrators is to ensure that the children in their charge receive adequate instruction from a qualified, competent teacher. If Ms. Harkleroad's panic disorder required an accommodation, it was her responsibility to come forward and request it. The evidence established that she did not do so. It was not the duty of her superiors to tease the information out of her. As Mr. Williams pointed out, he is responsible for 55 teachers at Beverly Shores. He does not have the time to delve into all their personal lives and medical conditions, and tries to respect their privacy. Under all the circumstances, his focus was properly on the classroom. Aside from alleging a conspiracy of sorts to get rid of her,8/ Ms. Harkleroad could not explain why four experienced school administrators would lie about having no recollection of talking with her about her panic disorder, though they all testified that they knew about her back problems and had at least some knowledge that she took pain medications. Ms. Harkleroad testified that two previous principals at Fruitland Park, Joan Denson and Charles McDaniel, had been aware of and made accommodations for her panic disorder. She called neither of these former principals as witnesses to corroborate her version of events. The failure to corroborate her testimony was a theme of Ms. Harkleroad's overall presentation. She offered no documentary evidence regarding her medical condition. None of her physicians were called to testify. No fellow employees, friends or neighbors were called to testify that Ms. Harkleroad had discussed her panic disorder with them. Ms. Harkleroad testified that her students and their parents loved her as a teacher, but she called none of them to testify. Ms. Harkleroad's only supportive witness, teacher Norma Jean Miller, had not worked with Ms. Harkleroad for several years and only knew her as a literacy coach, not a classroom teacher. Ms. Miller knew of Ms. Harkleroad's back problems, but said nothing about a panic disorder. In the absence of corroborating evidence, it strains credulity beyond all reason to accept the sole word of Ms. Harkleroad that Dr. DeJarlais decided to get rid of her because of her drug use, realized that Ms. Harkleroad's panic disorder was a means to insure that she failed her evaluations, then apparently recruited the administration of another school to complete the process.9/ Because there is no evidence beyond Ms. Harkleroad's less than credible testimony to establish that the evaluation process was conducted in bad faith, it is found that the administrators at Fruitland Park and Beverly Shore judged Ms. Harkleroad on the merits of her teaching performance and graded that performance accordingly. Ms. Harkleroad complains that the criteria used in the evaluations were vague to the point of opacity, and did not take into account that different teachers may have different approaches to their work. She believes that some of the standard rules for classroom instruction are "ridiculous." When Ms. Rogers told her that she should make the children raise their hands and be called on before speaking in class, she airily dismissed the criticism as a "philosophical difference." Though the specific problems with Ms. Harkleroad's classroom performance were eminently correctible, her obstinacy and/or obtuseness in rejecting pointed advice from her superiors made it clear that she was highly unlikely ever to correct her performance deficiencies. The evidence established that the process followed by School Board personnel in evaluating Ms. Harkleroad's performance before and during her probationary period followed the letter of the IPPAS and the CBA, including the NEAT procedure set forth in Section 12 of Article XI of the CBA. The criteria and forms used to evaluate her performance were taken directly from the IPPAS Handbook. However, even though all procedures were correctly followed in the evaluation process, the School Board failed to establish grounds for terminating Ms. Harkleroad's employment pursuant to Section 1012.34(3), Florida Statutes, because it failed to offer evidence, apart from the anecdotal reports of the evaluators, that Ms. Harkleroad's teaching performance adversely affected the academic performance of the students assigned to her classroom.10/ The assessment procedure is to be "primarily based on the performance of students," and the absence of data such as FCAT scores or other objective comparators renders the School Board's case insufficient under section 1012.34, Florida Statutes.11/ The issue then becomes whether the School Board has established sufficient grounds for "just cause" termination pursuant to section 1012.33(1), Florida Statutes. On the sole statutory ground available under the evidence of this case, incompetency, the School Board has met its burden and justified its decision to terminate Respondent's employment. The evidence produced at the hearing demonstrated that the School Board had just cause to terminate the employment of Ms. Harkleroad for incompetency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the ground of incompetency. DONE AND ENTERED this 24th day of June, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2011.
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
The Issue Did Respondent, Volusia County Schools (School Board), decline to renew the contract of Petitioner, Glen Collins (Mr. Collins), because of his age? Did the School Board unlawfully retaliate against Mr. Collins for protected activity?
Findings Of Fact The School Board is an employer as defined by section 760.02(7), Florida Statutes (2010),1/ the Florida Civil Rights Act. The School Board had policies and procedures in place during Collins' employment that prohibited the discrimination or harassment of any employee "on the basis of [that employee's] race, color, religion, national origin, sex, disability, marital status, political beliefs, sexual orientation, or age." The School Board provided these policies and procedures to all employees in the new employee briefing. The School Board also provided employees periodic training on the policies. Additionally, the policies and procedures were available to employees on the School Board's website and in employee handbooks. The School Board also operated a human resources department to help enforce the policies and answer employee questions or concerns about the policies. The School Board's anti-discrimination policy encouraged any employee who believed he or she had been subject to harassment on the basis of age to notify the equity officer, through use of a report form or orally, within 60 days of the alleged harassment. The School Board policies commit to promptly investigate any complaint(s) of harassment, whether formal or informal, verbal or written, and take appropriate action to prevent further harassment, including disciplining the employee violating its policy. The School Board also prohibited retaliation against any employee for reporting allegations of harassment or participating in an investigation, proceeding or hearing related to the alleged harassment. The School Board would take the appropriate disciplinary or other action against any employee found to be in violation of the policy. Mr. Collins worked for the School Board from August 28, 2006, until June 30, 2010. He began employment in the maintenance unit for the school system. The maintenance unit employees were responsible for repair and other maintenance of the School Board facilities throughout Volusia County. Russell Tysinger (Mr. Tysinger) hired Mr. Collins. In 2006, the School Board operated separate construction and maintenance departments. The maintenance department consisted of employees at two district offices, one in Daytona Beach and one in Deltona. Mr. Collins began work at the Daytona office. Mr. Collins was a skilled, diligent, and committed employee. Over the years he worked in several positions including Electrical Maintenance Supervisor for the East Side (of the County), Facility Mechanical Technician (FMT) Supervisor, and Trade Supervisor (Electric). In addition to performing all the duties of his various positions during his years of employment, Mr. Collins volunteered for additional duties and actively sought to identify and solve problems at the schools for which he was responsible. For instance, when a plumbing supervisor retired, Mr. Collins volunteered to assume the duties of that position. This permitted the School Board to save money by eliminating the position. The School Board recognized Mr. Collins' skills and dedication. It gave him additional duties and pay increases. The School Board does not claim that Mr. Collins' termination was for discipline or unsatisfactory work. In 2008, and in every year since, the School Board's revenue has declined. This has caused a decrease each year in the budget of the maintenance and construction department and other departments. When the School Board hired Mr. Collins, he knew that it faced financial difficulties and was likely to downsize. Mr. Tysinger, the maintenance unit's head, had to reduce costs, increase efficiency, and economize in both the materials and labor components of his budget. In 2008, he eliminated several vacant positions and did not fill positions created by retirements. In 2009, when the head of the construction unit resigned, the School Board consolidated the maintenance and construction units to save money. Mr. Tysinger became the head of the consolidated unit. The School Board eliminated the position filled by the former head of construction. In 2009, Mr. Tysinger faced a greater need to reduce costs, including labor costs. This year there were not enough retirements and vacancies to achieve the needed personnel cost savings simply by eliminating vacant positions. Mr. Tysinger laid off 12 employees from the newly consolidated unit, including five in supervisory positions. He reduced capital and material expenditures also. And he reinvigorated an energy conservation program to reduce utility costs. During the 2009-2010 time period, Mr. Tysinger also changed the maintenance shop locations from two (one on the east side of the county and one on the west side) to five distributed around the county. He did this to reduce the costs of the various tradesmen driving to the schools where they performed their tasks and to improve efficiency by having less driving time and more working time. These changes saved the financial equivalent of 33-full time equivalent positions and doubled the department's productivity. In July of 2009, Mr. Collins became an FMT supervisor, responsible for overseeing and assisting 11 FMTs. These duties were in addition to his duties as an electrical maintenance supervisor. On December 3, 2009, Mr. Collins executed an annual contract with the School Board for the 2009-2010 school year. The contract specifically provided that "[a]n Employee may be dismissed where the School Board through financial necessity for good cause shown deems it necessary to decrease the number of employees of the particular kind of service in which the affected Employee was engaged." The contract expired on June 30, 2010. In 2010, the School Board required Mr. Tysinger to cut approximately 1.8 million dollars from his personnel budget and four to five percent from his materials and supplies budgets. These further budget reductions required Mr. Tysinger to lay off 38 employees in the construction and maintenance division and take other cost-cutting measures. Mr. Tysinger conducted a rational analysis of employees and their skill sets to determine which employees he would have to let go in 2010. First, Mr. Tysinger identified all of the skill sets that he needed to have in the maintenance and construction unit. This included plumbing, electrical, and heating and cooling. He also determined how many employees with each skill set he needed. Then he identified the employees with the needed skills. After that, Mr. Tysinger reviewed the seniority of each employee in each group determined by the skill set groupings. He then determined who would be laid off by seniority, while ensuring that he maintained the skill sets needed and the number of employees he required with those skills. Using seniority as a factor helped ensure that the School Board retained the employees with the most experience with the School Board facilities and systems. Mr. Collins was one of the individuals let go. Mr. Tysinger advised Mr. Collins on May 27, 2010, that the School Board would not renew his contract in June when it expired. Mr. Collins was 52-years-old. The School Board's Maintenance and Construction unit retained employees older than Mr. Collins. For example, the School Board retained Mr. Ken Blom and Mr. Rick Jones, both of whom were older than Mr. Collins. During the period between May 27, 2010, and the end of the contract period, Mr. Collins' supervisor asked him to train Antonio Gutierrez in the job duties that Mr. Collins performed and inform Mr. Guiterrez about projects and activities underway. Mr. Gutierrez is younger than Mr. Collins. His age does not appear in the record. Mr. Tysinger retained Mr. Gutierrez because of his expertise with air conditioning units, because air conditioning was one of the largest problem areas, and because of his seniority. During the time period when he reduced the number of staff, Mr. Tysinger also reassigned employees to different locations and units to provide the needed distribution of skill sets at each location and in each unit. This process took several months. In this process, as an interim measure, Mr. Tysinger assigned Mr. Gutierrez to perform many of Mr. Collins' functions. Mr. Gutierrez did not replace Mr. Collins or permanently assume his duties. Mr. Tysinger reassigned the majority of Mr. Collins' duties to Mr. Blom. This included his electrical duties and supervision of some of Mr. Collins' former FMTs. He assigned Mr. Collins' plumbing responsibilities and some of his FMTs to Mr. Ford. And he assigned some of Mr. Collins' electrical responsibilities to Mr. McKinnon. The ages of Mr. Ford and Mr. McKinnon do not appear in the record. Mr. Collins' claim of age discrimination rests solely on his belief that Mr. Gutierrez assumed his job responsibilities. During his employment with the School Board, Mr. Collins identified maintenance problems at different schools, including Pine Ridge High School, over the years and reported them. Mr. Collins also discovered sealant was being improperly applied and raised concerns about this. Mr. Collins thinks that his identification of the problems embarrassed the supervisors responsible for the schools and that his termination was retaliation for identifying the problems. There is no persuasive evidence to support Mr. Collins' belief. There is no evidence that Mr. Collins opposed any practice that is unlawful under the Florida Civil Rights Act of 1992 (chapter 760, Florida Statutes), or that he made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Civil Rights Act. Budget reductions required the School Board to reduce the number of employees in the construction and maintenance unit where Mr. Collins worked. Mr. Tysinger and the School Board did not consider Mr. Collins' age in deciding to end his employment. They also did not act because of any dissatisfaction with his good work identifying problems with the maintenance of the schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Collins' Petition for Relief. DONE AND ENTERED this 11th day of April, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 11th day of April, 2012.
The Issue The issue is whether Respondent is sleeping in class and failing to supervise his students, so as to violate the prohibitions against misconduct in office and incompetence, as provided by Florida Administrative Code Rule 6A-5.056.
Findings Of Fact Respondent has been employed by Petitioner as a classroom teacher for 12 years, all at Cypress Bay High School. During his teaching career, he has taught physical and earth science, except, on occasion, when he has been assigned to teach biology. He has earned exclusively satisfactory marks on each of his annual evaluations, including his most current evaluation. On the evening of April 8, Respondent and his wife were up all night with their special-needs daughter. The next morning, Respondent reported to work punctually and taught his first period course. Respondent was exhausted from lack of sleep the previous night. While seated in his chair between classes, he lifted his eyes toward the heavens, emitted a quiet sigh, and prayed silently for the strength to get through the day at work. His head tilted back and his eyes closed, Respondent was lost in prayer as the students filtered into the classroom.1/ Although in a deeply relaxed state, Respondent could hear the students taking their seats and preparing for class to start. Stirring slightly at the bell signifying the start of class, Respondent emerged from his prayerful reverie after no more than two minutes into second period; he was in this state for no more than four minutes immediately prior to the bell. On these facts, it is impossible to infer from the evidence that Respondent was sleeping at the start of class. He was disengaged, though, so, as he began instruction, he appropriately apologized for his inattention for what was no more than the first couple of minutes of class and explained that he and his wife had had a rough night with a sick child. At all material times, the white board at the front of the classroom was full of written material, and the students had bellwork to perform at the start of every class. There were no behavioral problems during the time that Respondent had failed to give the class his undivided attention, and his inattentiveness did not affect learning that day.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 13th day of January, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 January, 2014.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated December 20, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, the Respondent has held teaching certificate number 390667. That certificate was issued by the Department of Education and covers the areas of driver education, physical education, and kindergarten through eighth grade. Respondent's current teaching certificate expires on June 30, 1991. At all times material to the allegations of the administrative complaint, the Respondent was an annual contract teacher employed by the School Board of Dade County, Florida (Board). Respondent began teaching in the public school system upon employment by the Board in 1986. Prior to that time Respondent had pursued other career options. At the beginning of the 1988/89 school year, Respondent was assigned to West Homestead Elementary School where he taught physical education. Subsequent to an investigation regarding allegations at that school, Respondent was administratively reassigned to teach a half day at Cypress Elementary School. In the mornings, Respondent taught at another school, then he went to Cypress Elementary for the remainder of the day. Prior to assuming his teaching responsibilities at Cypress Elementary in October, 1988, Respondent met with Judith Martin. Ms. Martin, the principal at Cypress Elementary, instructed Respondent that he was not to touch the students assigned to his classes. Ms. Martin advised Respondent that she expected him to exhibit professional conduct and to show respect toward the children. Respondent acknowledged that he understood he was to refrain from improper conduct, and asserted that he was a very good teacher. In January, 1989, Ms. Martin received complaints from female students in Respondent's class that he had inappropriately touched them on the back or arms. When Ms. Martin met with Respondent regarding the allegations and made him aware of the students' discomfort with his conduct, he explained that he is a "touchy" person and that his manner of teaching sometimes required putting his hands on a student but that it was not done in an inappropriate way or intended to make them uncomfortable. At that time, Ms. Martin reminded Respondent that he was not to touch students or to embarrass them. Anette DuQuesne was a sixth grade student in Respondent's class during the 1988/89 school year. On one occasion, Respondent directed Anette to remove her jacket when she did not wish to take it off. The jacket did not interfere with her play and she did not wish to remove it since her shirt was too big and she felt she would be exposed. Respondent insisted that she remove her jacket and told her that there was nothing (referring to her breasts) there to see. The comment was made in front of Anette's classmates and embarrassed and angered her. Mike Quintana, Gievan Rodriguez, and Roger Perez were fourth grade students assigned to Respondent's class during the 1988/89 school year. On one occasion, Respondent directed the students, who were engaged in a tug-of-war, to let go of the rope. When the students continued to pull, Respondent went down the rope separating the students from the rope. To accomplish that separation, Respondent struck Mike, Gievan, and Roger in the chest area with his hands, forearms, or elbows. The students were not seriously injured but were hurt to the point of tears by the blows struck by Respondent. The activity described in paragraph 8 occurred after Respondent had been directed for a second time to refrain from touching students. Respondent presented no credible explanation for why it was necessary to separate the students from the rope in such a manner. Respondent admitted that Gievan (who was crying) approached him regarding the incident and complained about being struck by Respondent's elbow. The physical education grounds at Cypress Elementary are immediately adjacent to a Dade County public park. On one occasion, park employees removed a malalucca tree which was next to the park's tennis courts. A backhoe used to pull the tree stump repeatedly came onto school property and crossed the Cypress track. During the tree removal process, Mr. McCauley, a physical education teacher at Cypress Elementary, observed that students from Respondent's class were running the track in an area dangerously close to the backhoe. Mr. McCauley observed that one of Respondent's students dodge the backhoe at a close range. Mr. McCauley advised Respondent of the problem so that he could take corrective measures. Despite being made aware of the dangerous condition, Respondent allowed and, in fact, directed his students (all of whom were elementary school ages) to continue running the track. Respondent's warning to the students (to be aware of the backhoe and to run further in) was inadequate given their ages and the alternatives available to Respondent. After a second warning from Mr. McCauley, Respondent continued to allow his students to run the track. Subsequently, Mr. McCauley reported the incident to a school administrator. Following an investigation of the allegations against him, school officials removed Respondent from Cypress Elementary in April, 1989. Respondent was given a non-student contact assignment at an area office. When his contract with the Board expired in June, 1989, Respondent was not offered a contract for the following school year. Respondent did not intentionally touch female students to make them feel uncomfortable. However, touchings did occur after Respondent was directed to refrain from such conduct. Respondent maintained that pats on the back or shoulder were done out of praise for something well done and that boys and girls were treated similarly. Since June, 1989, Respondent has been self- employed.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission enter a final order suspending the Respondent's teaching certificate for a period of one year. DONE and ENTERED this 3rd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1990. APPENDIX TO CASE NO. 90-1391 RULINGS ON THE PROPOSED FINDINDS OF FACT SUBMITTED BY THE COMMISSION: Paragraphs 1 through 4 are accepted. With regard to paragraph 5 it is accepted that the Respondent struck the students. Whether he did so with his hands or his forearms or elbows is unclear; however, the blows were of a sufficient force to cause the students to cry. Paragraph 6 is rejected as irrelevant. Paragraphs 7 through 9 are rejected as recitation of testimony, repetitive, or irrelevant. To the extent that paragraph 10 describes Respondent's admission that he went through the tug-of-war line separating the students off the rope, it is accepted; otherwise rejected as irrelevant. Paragraph 11 is accepted. Paragraph 12 is accepted but is irrelevant. Paragraphs 13 through 15 are accepted. To the extent addressed in findings of fact paragraphs 10 and 11, paragraphs 16 and 17 are accepted; otherwise rejected as irrelevant. Paragraphs 18 and 19 are rejected as argument, comment, or irrelevant. Paragraph 20 is accepted but is irrelevant. To the extent addressed in findings of fact paragraph 7, paragraphs 21 and 22 is accepted; otherwise rejected as irrelevant or recitation of testimony. Paragraph 23 is rejected as not supported by the weight of the evidence. It is accepted that the children complained about Respondent, but it is not found that Respondent committed the acts complained of with an intention to embarrass or disparage the students nor for some other inappropriate purpose. Paragraphs 24 through 27 are accepted but see findings of fact paragraph It is not found that Respondent actually was touching the students in an inappropriate way or for an inappropriate reason; it is not disputed that the students perceived that Respondent was acting inappropriately. The accuracy of those perceptions has not been established by clear and convincing evidence. Paragraph 28 is rejected as irrelevant. The first two sentences of paragraph 29 are accepted; otherwise rejected as irrelevant or hearsay. The last sentence of paragraph 30 is accepted; otherwise rejected as irrelevant. Paragraphs 31 and 32 are accepted. Paragraph 33 accurately recites Dr. Gray's opinion, but is rejected since the factual basis for that opinion has not been established in total, by clear and convincing evidence. Dr. Gray's opinion has been considered to determine a recommendation since the Commission has established by clear and convincing evidence a violation of law or rule. Paragraph 34 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted but is irrelevant. Paragraph 2 is rejected as contrary to the weight of credible evidence. Paragraph 3 is accepted. With the exception of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 4 is accepted. Paragraph 5 is accepted. Paragraph 6 is accepted. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 325 West Gaines Street Room 352 Tallahassee, Florida 32399 Craig R. Wilson Suite 315 1201 U.S. Highway 1 North Palm Beach, Florida 33408-3581 William DuFresne DuFRESNE AND BRADLEY 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue Whether Respondent committed the acts alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Chih-Li Ou Yang (Respondent), currently holds a temporary teaching certificate, Florida Educator’s Certificate 683550, issued by the State of Florida, Department of Education. The certificate covers the area of Emotionally Handicapped and is valid from July 1, 1995 through June 30, 1997. Respondent was employed as a teacher of emotionally handicapped students in the Hillsborough County School District (Hillsborough County) from August 16, 1993 through June 30, 1994. Respondent’s employment in the Hillsborough County was pursuant to a temporary contract which guaranteed her employment for only one school year. During her employment as a teacher in Hillsborough County, Respondent’s performance as a teacher of emotionally handicapped students was evaluated. Of the four general areas covered on the evaluation, Respondent received an overall rating of unsatisfactory in three areas, resulting in an overall performance evaluation of unsatisfactory. Respondent was given a copy of her evaluation from Hillsborough County. On or about April 12, 1994, Respondent submitted an Application for Instructional Position (Application) for employment with the School Board of St. Lucie County, Florida. The Application included a section, entitled “Teaching Experience,” which requested that the applicant submit a copy of her most recent annual evaluation/observation. This section further provided space for the applicant to list the names and addresses of the schools where the applicant had taught; the grades and subjects taught; and the dates of such employment. Respondent did not list any prior teaching experience. The Application also contained a section entitled "Educational References," which required the applicant to list the name and location of the school system where she was currently under contract. Respondent did not respond to this question, but rather left it blank. The application contained the following statement: . . .I certify that all information given on this application is true and complete to the best of my knowledge. I understand that employment through false or willful misrepresentation of facts may be grounds for dismissal. Respondent signed the Application on April 8, 1994, thereby, certifying that the information provided on the Application was true and complete. On or about April 6, 1994, Respondent submitted a resume? to the School Board of St. Lucie County. The resume? failed to disclose her work experience in Hillsborough County. A new program for the emotionally handicapped students was being implemented for the 1995-96 school year at Garden City Elementary School, a school in the St. Lucie County School District. At all times relevant to this proceeding, Dr. Martha H. Rahming was the principal of Garden City Elementary School. In the fall of 1995, Dr. Rahming interviewed Respondent for a teaching position in the program for emotionally handicapped students at Garden City Elementary School. Although during the interview Respondent's past work experience was discussed, she did not disclose to Dr. Rahming her teaching experience in Hillsborough County. Respondent also did not provide Dr. Rahming with a resume? which included her Hillsborough County teaching experience. Dr. Rahming requested that Respondent be hired for a teaching position in Garden City Elementary School's program for emotionally handicapped students. On September 12, 1995, the School Board of St. Lucie County, Florida appointed Respondent to a position as a teacher of emotionally handicapped students at Garden City Elementary School. The appointment, effective September 13, 1995, was for the first semester only. While working as a teacher at Garden City Elementary School, Respondent demonstrated difficulty in adjusting to her work. The most serious problems experienced by Respondent involved her inability to maintain order in the classroom. This difficulty was similar to the difficulty Respondent had while teaching in Hillsborough County. Dr. Rahming tried to assist Respondent by having her work with more experienced teachers; however these efforts were unsuccessful. Dr. Rahming eventually sought assistance from the St. Lucie School District's Central Administration. On or about November 10, 1995, a conference was held at Garden City Elementary School concerning the difficulties Respondent was experiencing in the classroom. The conference was attended by Respondent, Dr. Rahming, and two district level administrators, Susan Ranew and Mrs. Gaylor. During this meeting, Respondent admitted that she had previously worked in Hillsborough County as a teacher. Only after this acknowledgment did Dr. Rahming become aware of Respondent's teaching experience in Hillsborough County. The problems that Respondent had in coping with her job responsibilities had a detrimental effect on the emotionally handicapped children she was hired to teach. Had Dr. Rahming been aware of Respondent's prior work history in Hillsborough County, she may not have recommended that Respondent be hired. Since inadvertently revealing her Hillsborough County teaching experience, Respondent has given several different explanations for not disclosing her Hillsborough County teaching experience on her Application. The reasons given by Respondent include (1) her belief that listing the experience would jeopardize her employment opportunity in the St. Lucie School District; the custom in her county is that negative work experience not be listed on applications; her belief that listing of all teaching experience on the application was optional; and at the time the application was completed, she was no longer under contract with Hillsborough County. Although English is not Respondent's first language, when the Application was completed, Respondent had earned two Master's degrees from two universities in the United States. In order to earn these graduate degrees, both of the universities required fluency in the English language. It is important for individuals applying for teaching positions to be honest in application for jobs so that administrators can adequately assess candidates and ultimately do what is best for the children involved. After admitting that she had failed to disclose her Hillsborough County experience, Respondent was informed by St. Lucie School District administrators that her behavior was sufficiently serious to justify discipline. However, prior to the St. Lucie School Board's taking any disciplinary action, Respondent resigned her teacher's position, effective December 12, 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a final order be entered suspending the teaching certificate of Respondent, Chih-Li Ou Yang, for a period of two (2) years, followed by a one year period of probation under such terms and conditions as prescribed by the Education Practices Commission. DONE and ORDERED this 6th day of May, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997. COPIES FURNISHED: Ms. Chih-Li Ou Yang 4246 Reuben Court, Apartment 64 Tampa, Florida 33616 Bruce Taylor, Esquire 501 First Avenue North St. Petersburg, Florida 33701 Kathleen M. Richards Administrator Department of Education Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Karen Barr Wilde Executive Director Educational Practices Commission 224-B 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 32399-400
