The Issue The issues in the case are whether Respondent committed the offenses enumerated in the Administrative Complaint filed by Petitioner and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Respondent holds a valid Florida Educator’s Certificate No. 514964, covering the area of elementary education, which is valid through June 30, 2007. At all times material to this case, Respondent was employed as a teacher at Moton Elementary School in the Hernando County School District. She is admired and respected within Moton Elementary and is considered by her principal to be an excellent teacher. Her performance evaluations consistently reflect that she exceeds expected performances levels in every category. Her honesty and integrity are unquestioned. Respondent is viewed as the quintessential teacher who teaches simply because she loves working with children, watching them learn and grow. Students in the State of Florida are administered a standardized test known as the FCAT. A portion of that test is known as the norm referenced test, or NRT. The NRT is used to compare students in Florida with the achievement of students in other states. It can also be used, as a secondary tool, in the placement of individual students. Teachers are forbidden to give direct assistance to students on the FCAT and the NRT portion of the FCAT, although they can give general encouragement to a group of students. Respondent’s practice, during normal testing in the course of the school year, is to circulate throughout the classroom. If she sees a student that has incorrectly dealt with a problem, she will direct the student to review the problem, and to think about the answer. Respondent was trained in how to administer the FCAT, including the NRT portion. Specifically, she was told she was not to give assistance to students as they were taking the test. On the afternoon of the day in March of 2002 when concerns were raised about Respondent having assisted at least three students on the NRT portion of the exam, Principal Donnie Moen summoned Respondent to his office to ask her if anything unusual had happened during the test. Respondent told him nothing unusual had happened. Later that evening, Respondent wondered out loud to her husband whether she had provided any assistance during the test. The next day, Respondent got the class together and asked the students whether she had provided any directions or assistance on any specific questions. Three students raised their hands and told Respondent she had provided assistance on a specific question. Respondent then realized and now concedes that during the test, while circulating throughout the class, she told K.M. to check her answer to a certain question; told S.H. to go back to a certain question she had skipped over and check the answers to the questions that followed; and told F.M. he needed to check the aquarium problem. When she realized she had given these students assistance on specific questions, she told the students she had to go to the principal to report what she had done. The students asked whether she would get in trouble. She reminded the students she had always thought that honesty was the best policy, no matter what happened. Respondent then reported to the principal to tell him she had provided some assistance to three different students on specific questions. While Respondent avows she did not intentionally provide assistance to any students, Respondent did fail to distinguish between normal classroom testing procedures and standardized testing procedures. Respondent’s effectiveness as a teacher has not been diminished by her actions. She continues to enjoy widespread support from staff, parents and school administration, although, as a result of the incidents in the NRT portion of the FCAT, Respondent accepted a "last chance agreement" with the local school district. Part of that agreement was a 10-working day suspension without pay, and probation for a period of one year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order retroactively suspending Respondent's certificate for a 10-working day period, coupled with probation for a period of one year. Such recommended penalty should run concurrently with discipline imposed by the Hernando County School District upon Respondent in April of 2002. DONE AND ENTERED this 29th day of July, 2003, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 29th day of July, 2003. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Bruce Taylor, Esquire Post Office Box 131 St. Petersburg, Florida 33731 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent, Nancy S. Lowery ("Respondent"), violated Subsections 231.2615(1)(c), (f), and (i), Florida Statutes (2001),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate No. 365470, issued by the Department of Education. The certificate covered the area of family and consumer science and was valid through June 30, 2002. During the 2001-2002 school year, Respondent was a teacher at Oakridge High School ("Oakridge"), a school in the Orange County School District ("School District"), and taught exceptional education students. On February 1, 2002, while employed as a teacher at Oakridge, Respondent showed the movie, "Jaws III," in her classroom to the students in her fourth-period class. That day there were about ten students in Respondent's fourth-period class. Prior to or soon after starting the movie, Respondent turned off the lights in the classroom, and the lights remained off while the movie was playing. While the movie was playing, the students in Respondent's class sat at their desks. However, at some point during the movie, D.C., a female student in the class, asked J.G., another student, if she (J.G.) gave "head." In response, J.G. answered in the affirmative. After J.G. responded, D.C. and G.J., a male student in the class, then coaxed J.G. to perform oral sex on G.J. Then, G.J. unzipped his pants and told J.G. to put her head "down there," and she did so. At or near the same time, G.J. put his hand in J.G.'s pants. For most of the class period, J.G.'s head was in G.J.'s lap. While J.G. was performing oral sex on G.J., some of the students in the class positioned their desks so that Respondent could not see what J.G. and G.J. were doing. At all times relevant to this proceeding, B.D. was about 16-years-old and a student at Oakridge. B.D. was in Respondent's fourth-period class on February 1, 2002, and observed the events and incident described in paragraphs four through six. Petitioner was in the classroom during the entire fourth period while "Jaws III" was playing. However, once the movie began playing, Petitioner was at the computer in the classroom "working on" or "typing" something. Petitioner was working at the computer most of the class period and did not see J.G. and G.J. engaging in the inappropriate sexual conduct described in paragraph five. At all times relevant to this proceeding, Kari Sperre was the chairman of the Exceptional Education Department at Oakridge, the department in which Respondent worked. On the morning of February 1, 2002, Ms. Sperre took her class on a field trip. Ms. Sperre and her class returned to the school during the fourth period. As Ms. Sperre walked by Respondent's classroom, she noticed that the lights in that classroom were out. Later that day, it was reported to Ms. Sperre that J.G. had told another student, L.C., that she (J.G.) had performed oral sex on G.J. Upon hearing this report, Ms. Sperre investigated the matter. Ms. Sperre first talked to L.C., a female student in the ninth grade at Oakridge. L.C., who was not in Respondent's fourth-period class, reported to Ms. Sperre that J.G. told her (L.C.) that she (J.G.) had performed oral sex on G.J. After she spoke with L.C., Ms. Sperre then talked to J.G. Although initially reluctant to talk to Ms. Sperre, J.G. eventually told Ms. Sperre what had happened that day in Respondent's class. J.G. told Ms. Sperre that she had only recently transferred to Oakridge, that she was in Petitioner's fourth-period class, and that the lights in the class were out during class that day. J.G. also reported to Ms. Sperre that two students in the class, D.C., a female student, and G.J., a male student, encouraged her to perform oral sex on G.J. According to J.G., D.C. and/or G.J. told her that all she had to do was put her head underneath G.J.'s jacket and nobody would know what was going on. J.G. also told Ms. Sperre that G.J.'s pants were open and admitted that, "I just bent down and did it." J.G. told Ms. Sperre that this incident occurred while the class was watching the movie and while Respondent was working on the computer. At all times relevant to this proceeding, J.G. was classified as an exceptional education student, having been classified as educable mentally handicapped. A student classified as educable mentally handicapped has an IQ of below 70, well below the average IQ of 100. After the February 1, 2002, incident that occurred in Respondent's class, J.G. was suspended from school for engaging in inappropriate conduct at school. Also, since the incident, J.G. withdrew from school and is no longer enrolled in the School District. On February 1, 2002, Respondent violated several policies of the School District. First, the School District requires that teachers supervise their students at all times when they are in the classroom. In order to do this, the teacher should have the students within sight. This is especially important with regard to exceptional education students, who have special and unique challenges. Respondent did not supervise her fourth-period class on February 1, 2002, although she was in the classroom. Instead of supervising her class, Respondent was working at the computer most of the class period and was unaware of what the students were doing. Clearly, Respondent was not supervising her students, as evidenced by her failure to ever notice or observe the sexually inappropriate conduct by students in her class. By failing to properly supervise her class on February 1, 2002, Respondent failed to protect her students from conditions harmful to their learning and/or physical health and/or safety. The incident that occurred on February 1, 2002, in Respondent's class could have a negative impact on both the students who observed the incident, as well as the student who was encouraged to perform oral sex on the male student. The educable mentally handicapped student who was coaxed into performing the act could be the victim of teasing as a result of her involvement in the incident. According to Ms. Sperre, those students who witnessed the incident could also be negatively impacted by being exposed to and observing the incident. For example, many of the students in the exceptional education class could also be encouraged to engage in the same type of activity that they witnessed in Respondent's fourth-period class on February 1, 2002. The School District has a policy that prohibits teachers from turning out all the lights in their classrooms during class time. This policy is for safety reasons and requires that even if there is a need to turn off the classroom lights, at least one "bank" of lights must remain on at all times. On February 1, 2002, Respondent violated the policy discussed in paragraph 22, by turning off all the lights at or near the beginning of the fourth period, and they remained off while the students were watching the movie. This violation contributed to Respondent's failure to supervise the students because with all the lights out, even though she was in the classroom, Respondent was unaware and unable to see what the students, including J.G. and G.J., were doing. During the 2001-2002 school year, Oakridge had a policy that allowed teachers to show only movies that were educational or had some relevance to the lesson being taught in the class. At the beginning of every school year, including the 2001-2002 school year, teachers at Oakridge are given faculty handbooks, which include various policies and procedures that they are required to read. In addition to these written policies and procedures, Oakridge administrators would "discuss" various "oral procedures" with teachers at facility meetings. It is unclear if the policies or procedures regarding the kinds of movies that could be shown at Oakridge and the prohibition against having all the lights off in classrooms at Oakridge were written or oral policies and/or procedures. On February 1, 2002, Respondent violated the policy related to the kind of movies that are allowed to be shown in the classroom by showing the movie, "Jaws III." "Jaws III" is not an educational movie, nor was it relevant to any lesson being taught by Respondent at or near the time it was being shown to the students. The School District investigated the February 1, 2002, incident, and thereafter, the committee reviewed the incident and voted unanimously to recommend that Respondent be terminated as a teacher in the School District. Despite the unanimous recommendation of termination, because Respondent's teaching contract for re-appointment was to be considered soon, instead of terminating Respondent, the School District decided that it would simply not recommend her for re-appointment for the 2002- 2003 school year. On February 20, 2002, after the February 1, 2002, incident was investigated, Oakridge's principal, J. Richard Damron, issued to Respondent a letter of reprimand and a letter of directives regarding the incident that occurred in Respondent's classroom on February 1, 2002. The letter of reprimand specifically referenced the February 1, 2002, incident and stated that Respondent had "failed to use reasonable care in supervising" the students in her class. Next, the letter of reprimand stated that a directive would be issued in a separate correspondence that outlines the School District's expectations regarding Respondent's conduct in the future. Finally, the letter of reprimand noted that "should there be another incident of a similar nature in the future[,] discipline, up to and including dismissal could be recommended." On February 20, 2002, Principal Damron issued written directives to Respondent which required her to do the following: (1) establish a safe, caring, and nurturing environment conducive to learning and the physical and psychological well- being of students; (2) refrain from showing films that are not directly associated with lessons that contribute to the education of children; (3) keep children under her [Petitioner's] direct supervision at all times and not leave students alone, with other teachers, or be absent from her duties unless she makes prior arrangements with the principal or one of the assistant principals; and (4) comply with all district and school directives, policies, rules, and procedures. Respondent's job performance as a teacher at Oakridge for the 2001-2002 school year was evaluated in March 2002. The results of the evaluation are reported on the School District's form entitled, Instructional Personnel Final Assessment Report ("Assessment Report"). The Assessment Report dated March 25, 2002, noted two areas in which Respondent "Needs Improvement": (1) Professional Responsibilities; and (2) Classroom Management and Discipline. Respondent was rated as "Effective" in four areas: (1) Curriculum Knowledge; (2) Planning and Delivering Instruction; (3) Assessment of Student Performance; (4) Development and Interpersonal Skills. On March 25, 2002, the same day the Assessment Report was completed, Principal Damron notified Respondent that he was not recommending her for re-appointment for the 2002-2003 school year. According to the letter, Principal Damron decided to not recommend Respondent for re-appointment "based upon performance- related reasons and the temporary contract" that she held at that time. Alfred Lopez, a senior manager with the Orange County School District, testified that by failing to supervise the students in her fourth-period class on February 1, 2002, Respondent's effectiveness as a teacher in the School District had "definitely" been reduced. Ms. Sperre testified that she would not ever want Respondent employed in a school in Orange County in which she (Ms. Sperre) was employed. Notwithstanding the beliefs of Mr. Lopez and Ms. Sperre, based on the letter of reprimand and the letter of directives issued on February 20, 2002, it appears that Respondent continued to teach at Oakridge after the February 2002 incident through the end of the school year. Furthermore, no evidence was presented which established that after the incident, Respondent was reassigned, relieved of, or otherwise removed from her position as an exceptional education teacher at Oakridge after the incident.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a final order finding that Respondent violated Subsection 231.2615(1)(i), Florida Statutes, and Florida Administrative Code Rule 6A-1.006(3)(a), but did not violate Subsections 231.2615(1)(a) and (f), Florida Statutes, and Florida Administrative Code Rule 6A-1.006(3)(e). It is further RECOMMENDED that the final order impose the following administrative sanctions on Respondent: Upon employment in any public or private position requiring an educator's certificate, Respondent shall be placed on two years' probation with the conditions that during this period, she shall: Notify the Education Practices Commission, upon employment and immediately upon termination of employment in any public or private position requiring a Florida educator's certificate; Have her immediate supervisor submit annual performance reports to the Education Practices Commission; Violate no law and fully comply with all School District regulations, school rules, and the State Board of Education; Satisfactorily perform assigned duties in a competent, professional manner; and Bear all costs of complying with the terms of this probation. Enroll in and successfully complete a three-hour college course in classroom management within the first year of probation and submit to the Bureau of Education Standards an official college transcript verifying successful completion of the course with a grade of "B" or higher. This course must be taken in person, and a correspondence or on-line course will not satisfy this requirement. Issue a letter of reprimand, with a copy to be placed in Respondent's certification file. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2005.
The Issue Whether Respondent Employer committed an unlawful employment practice against Petitioner on the basis of her handicap.
Findings Of Fact The parties have stipulated that: Respondent is a public school district and is the employer of Petitioner at Terwilliger Elementary School in Gainesville, Florida. Petitioner has taught at Terwilliger for the past 12 years. Petitioner’s evaluations have consistently met or exceeded Respondent’s performance standards. For 11 years, until the 2008-2009 school year, her classroom was in Building Two, a multi-classroom structure on the northwest corner of the school. The instant controversy revolves around Petitioner's transfer to a detached, "portable" classroom for the 2008-2009 school year. The parties have stipulated that: Petitioner, a teacher of Pre-K Exceptional Student Education (ESE) special needs students, has 36 years experience. Her classes comprise from seven to 14 students, ages three, four, and five. She has mobility impairment and uses a wheelchair. Petitioner has post-polio syndrome, which limits her ability to walk. She uses a Pride Quantum 6,000 Power Chair, which the parties have stipulated is a rechargeable battery- powered wheelchair. The District is pro-active in hiring and retaining qualified teachers who happen to be handicapped, and makes efforts to accommodate those handicaps. The credible evidence is that while there may be more severely handicapped teachers employed by the District, there are no other permanently wheelchair-bound teachers at Terwilliger and no teacher in the District fits her limitations, qualifications, and assignments point-for-point. At the present time, Terwilliger has 89 employees, a faculty of 45 teachers and 560 students in Head Start and Pre-K through fifth grade, from age three through 13. Terwilliger has two Pre-K teachers, one of whom is Petitioner. The parties have stipulated that: Petitioner currently has an adult paraprofessional (aide) in the classroom with her. Petitioner sometimes has had two aides, depending on the needs of the children in her class. At the present time in the 2008-2009 school year, she has only eight students in the portable. If the enrollment in Petitioner's class reaches eight to 10 students, a second aide might be necessary. Aides work with Petitioner and assist Petitioner by helping the children during the school day. Sandra Medeiros, the principal at Terwilliger from 2000 through 2006, had planned to move both Petitioner and the other Pre-K teacher to self-contained portable classrooms 99-208L and 99-214L, in order for them to be nearer to the Head Start classrooms. The goal was to have the Head Start children interact more with the Pre-K children, so as to help the Pre-K students converse more (improve language skills) and so as to foster regular classroom behaviors. This process is called “inclusion” and is a respected educational goal on both the State and Federal levels. The move was planned for the 2006- 2007 school year. At some point, Ms. Medeiros discussed the move with Petitioner. In Spring 2006, Principal Medeiros had a ramp added to portable classroom 99-214L and had the bathroom enlarged with handrails, so as to render the new location accessible for Petitioner. Additional wiring was installed for a refrigerator and microwave. However, Ms. Medeiros was transferred from Terwilliger in June 2006. At that time, Petitioner had not yet moved to the portable. The new principal, Dr. Elizabeth LeClear, did not make any changes for her first school year at Terwilliger. At Petitioner's annual evaluation conference in May or June 2008, Dr. LeClear explained to Petitioner that Petitioner would be moving to self-contained portable classroom 99-214L, located on the central east side of campus. On June 20, 2008, Petitioner filed her Charge of Discrimination with FCHR, alleging a denial of reasonable accommodations and disparate treatment in the terms and conditions of employment. On July 10, 2008, Petitioner completed a self-referral form and submitted it to Respondent, suggesting as a reasonable accommodation that Petitioner be permitted to remain in her current classroom assignment in Building Two. Dr. LeClear relocated Petitioner and 25 other teachers in order to have the school organized by grade level, with every class in close proximity to the other classes and teachers of that grade level. She intended for the teacher "teams" to be together, in order to save time with student transitions to reading groups and to assist with teacher supervision. She also wanted the school to follow the District's Inclusion Model. Respondent District permits and expects principals to change the use of spaces to meet current needs of their school, including fluctuating enrollments and evolving programs. Terwilliger has six kindergarten classes. Those classes are now located in Building Two. The centrium, which is part of Building Two, is being converted to a computer and reading lab. The portable assigned to Petitioner and her current eight students meets all mandatory standards for Pre-K classrooms including, but not limited to, its providing 35 square feet per child. Other Florida school districts operate Pre-K classes in portables. There are portables in use all over the school district. Like Terwilliger, almost every school uses one or more portables. The pending move to the portable was stressful for Petitioner. Some of her stress and concern arose because she did not get written notification of the move until she had already left for vacation in June 2008. The parties have stipulated that: Petitioner was on approved medical leave from August 11, 2008, through January 4, 2009. She returned from such leave in January 2009. Not all the items Petitioner had acquired over the years and which had occupied parts of Building Two would fit in Petitioner's portable. Therefore, the move required that Petitioner select what she was taking with her and discard or store the remainder. During the summer and fall of 2008, Dr. LeClear offered the help of the custodial staff to assist Petitioner in packing for the move to the portable and in physically moving the boxes. Eventually, some of Petitioner’s items were taken to the portable; some were stored at Petitioner’s home; others were stored on Terwilliger’s campus; and still others were stored at another school. Petitioner has not specifically requested more storage space than is provided in her new portable classroom, but if her class size increases to ten children, the administration would be willing to work with her on some compromise regarding storage. Principal LeClear and Petitioner have had disagreements about what materials Petitioner may move from their ultimate storage spots into her portable classroom. At least once, the Principal has offered to go to the other school with Petitioner to reach a mutual agreement on those items, but Petitioner has not accepted her offer. At least once, the Principal did not respond to Petitioner’s written request concerning other items, and there is no clear explanation for the Principal's lack of response. However, these and similar situations are stressors amounting to simple miscommunications and misunderstandings but which do not reflect a deliberate failure of the Principal or the District to reasonably accommodate a handicap. Petitioner wants to return to her old classroom in Building Two and to use an area in Building Two called the "centrium" as she has done for 12 years. The crux of Petitioner’s position is that she feels the portable “houses” her, but does not accommodate her in providing the quality program for her special needs students that she has taken pride in providing throughout her previous years at Terwilliger. This concern was echoed by parents and others. Dr. Lise Fox, a professor in the College of Behavioral and Community Sciences at the University of South Florida, is a long-time friend of Petitioner. For years, Dr. Fox has used Petitioner and Petitioner’s Building Two classroom as exemplars for her students training to teach special needs children. Dr. Fox deposed that while Petitioner has run a model program for years, Petitioner’s new environment (the portable) could be deficient by national standards for Individuals with Disabilities Education Act (IDEA) and ESE students. Specifically, Dr. Fox was concerned that without the centrium, Petitioner has no indoor play area for development of her students’ gross motor skills. Dr. Fox could not say that any Americans with Disabilities Act (ADA) requirements were not being fulfilled in the portable, but she opined that the difference between what Petitioner was able to do as a teacher in Building Two and what she is able to do as a teacher in the portable amounts to the difference between a high quality Pre-K ESE program based on national professional standards and a program that is merely adequate by Federal and State requirements/standards. However, neither Dr. Fox nor anyone else espousing the foregoing view, were able to credibly state that Petitioner would not be able to fulfill her job requirements or pass her professional evaluations under her changed circumstances. Building Two was in existence when Petitioner first came to Terwilliger. It was designed for early childhood education, which includes Pre-K and kindergarten. It is accessible under ADA standards. For several reasons, Petitioner considers Building Two more accommodating to her handicap and better for her ESE students than her portable. Building Two contains several classrooms plus the “centrium.” Petitioner’s classroom in Building Two had an area of 805 square feet. Petitioner's classroom in the portable has an area of 824 square feet. The centrium was next to Petitioner’s classroom in Building Two. Petitioner did not use the centrium for instruction, but she sometimes used it for occupational and physical therapy and as space where volunteers could work one- on-one with individual children. The other Pre-K teacher also used that area on occasion for similar projects. Sometime in the past, Petitioner had received a grant to acquire stimulating educational and play materials for her classes. Technically, the items acquired at that time belong to Respondent District, but Petitioner properly retained them in her Building Two classroom, in its storeroom, and in the centrium, and utilized them under the terms of the grant. She also received District commendations for her acquisition of these items. However, after the grant ended, she continued to acquire more and more items on her own, to the extent that she had to clear paths in her classroom for her wheelchair to move through. Her last year in Building Two, Petitioner used the centrium mostly for storing a myriad of Pre-K toys and plastic play equipment, many of which were not part of the curriculum, but all of which had been acquired by Petitioner through grants, garage sales, and donations. Some of the toys were dangerous, due to deterioration or breakage. The sheer quantity of the material in that space concerned two successive principals, and the fire inspector. A small office was next to Petitioner’s former classroom in Building Two, as was a storage room, but neither was being used for instructional purposes at the time Petitioner was relocated to the portable. A kitchen space was next to Petitioner’s former classroom, but its stove had been disconnected for safety reasons years before Petitioner’s 2008 transfer. It was not demonstrated that a working kitchen is necessary for any of the curricula Petitioner teaches. There is no reason Petitioner cannot “socialize” children through food preparation/play without actually cooking in either Building Two or her portable, but the portable has been wired for a microwave and refrigerator. The student restroom in Petitioner’s previous classroom had a shower area and a washer and dryer. The shower, washer, and dryer were certainly convenient for dealing with small children, but they are not required features of a Pre-K program. At Terwilliger, the nurse’s station has a tub and shower facility that can be used if one is needed. Petitioner’s Building Two classroom had a changing table; the portable does not. It is unclear whether Petitioner herself used the changing table in her old classroom. Pre-K students may be too large/heavy for that type of assistance. It is possible, but not proven, that Petitioner's paraprofessional could provide that type of assistance. Petitioner’s current class has smaller sized children than those in her team teacher’s Pre-K class, but Petitioner did not prove that she can lift a child of either size onto a changing table from her wheelchair. It is good practice to ask parents to provide a change of clothes for their Pre-K child to change into and for the school to send home the soiled clothes. It is not “best practice” to change a Pre-K child standing up, but it is a permissible practice. The Building Two classroom had a restroom with “itty bitty” child-sized facilities and mid-range facilities. That restroom also had bars for little and mid-size toilets. The portable does not have the foregoing accommodations. The State of Florida does not require that a Pre-K classroom have a restroom, but the National Association for the Education of Young Children has a standard for a restroom being available within 40 feet of a Pre-K classroom, and either child-sized fixtures or a stepstool for the children to use adult-sized features. The portable meets these requirements. Dr. Fox felt the potty-training facilities in the portable’s rest room were inferior to those in Building Two, but she acknowledged the portable’s restroom would serve if there were steps to the wash bowl, which there were, and if a child’s potty adapter were added. The distance from Petitioner’s Building Two classroom to an adult restroom is about 70 feet. The restroom within the portable to which Petitioner is now assigned is fully functional for Petitioner. It meets ADA standards, but the arrangement of one handrail is not optimal for Petitioner. Because Petitioner lifts with both arms instead of with her legs, a railing on each side of the toilet, instead of railings beside and behind the toilet, would be more convenient for her than the present railing arrangement. Rearrangement of the rear railing to one side of the toilet might be a formidable job, given the placement of the toilet, but that has yet to be determined, because Petitioner did not ask to have the rear railing moved from the back to the side prior to filing her Charge of Discrimination. Petitioner’s assertion or suggestion that, contrary to school policy and safety planning, when she worked in Building Two, she usually parked in an area to which she was not assigned is irrelevant to her allegations herein of disparate treatment and failure to accommodate. The distance from Petitioner’s former designated handicapped parking space to Petitioner’s former classroom in Building Two is 260 feet. The distance from Petitioner's current designated handicapped parking space to the portable she now occupies is 470 feet, but it connects directly, via sidewalks. Most, if not all, of these sidewalks are under cover. Sidewalks in the vicinity of Petitioner’s portable are arguably less smooth than those utilized around Building Two, but there is not a significant difference. Once, one of Petitioner's wheelchair wheels got caught on, or near, one of the sidewalks near the portable, and once Petitioner drove her wheelchair into a grate, but each time she was quickly extricated by other teachers and/or administrative staff. At the present time, Petitioner’s portable has two doors and two ramps, one of which is covered to protect her from inclement weather. The type of door handles on the portable were changed from knobs to levers. These handles meet ADA requirements. Petitioner thinks the doors would be more convenient for her if they opened in, rather than out. If they opened in, it is possible that teaching space would be lost, and it is unclear whether exterior doors opening inward could still meet both ADA and Fire Code standards. Respondent’s ADA expert, Dr. Kenneth J. Osfield, did a site evaluation and testified that there are two exits out of Petitioner’s portable for fire safety. This feature, the walkways to the ramps, the ramps with handrails, the entrances/exits, and the internal classroom space meet ADA requirements, and, as previously stated, the restroom is already handicapped-accessible for Petitioner per the ADA. Dr. Osfield agreed with one of Petitioner’s concerns which was also shared by Dr. Fox. Therefore, he suggested that Respondent place fencing around the base of each portable so that children could not crawl under them. He further suggested that Petitioner remove her decorative items from one ramp and the entrances/exits so that she could maneuver more easily. In assessing the interior teaching space, the ADA expert found that Petitioner’s space in the portable was nicely decorated and also was a nice learning environment, due to Petitioner’s decorations and its general set-up. However, while her arrangement is attractive and acceptable to the School and District administrations, it presents access problems which are not presented by the open floor plan utilized in Petitioner’s team teacher’s smaller portable. Petitioner’s placement or angling of a table in her classroom immediately outside the portable’s restroom, and her storage of other items in the restroom (large garbage cans, chairs, boxes, etc.), make it difficult for her to maneuver her wheelchair there. Dr. Osfield was able to suggest ways to solve these problems, but they would require Petitioner’s cooperation. Charles E. Levy, M.D., the parent of a child who had been one of Petitioner’s students seven years ago, deposed that, as a parent, he would be less comfortable and secure with regards to his child’s learning and safety if his child were educated in the current portable classroom than he had been when his child was educated in Building Two. However, Dr. Levy observed only Petitioner’s portable, not the other Pre-K portable, and even he attributed Petitioner’s mobility problems in her portable classroom to significant physical barriers caused by her arrangement of the furniture. Petitioner has chosen to retain more personal material and equipment than her team teacher has. The other Pre-K teacher has borrowed some of Petitioner’s toys and learning devices and found them useful over the years, but she has not consistently used the quantity of items that Petitioner has. Petitioner’s teaching/learning material and equipment appears to the administration to be more material and equipment than is reasonably necessary to teach her class. It exceeds published guidelines, which some educators, including Petitioner, think is good, and which other educators think is not so good. Recycling learning toys and equipment throughout the year and storing those not in use so as to keep children interested in them when they are brought out again has merit. Also, learning through new and innovative play has merit. However, there is no credible evidence that Petitioner’s handicap requires that she either store or display such a large quantity of toys and equipment as she has chosen to retain. Fewer items or storage of some of her items would increase her mobility and render her more comfortable in the portable. Petitioner’s team teacher in the other, smaller portable has a less stimulating classroom but it operates functionally, and she and her students have been successful.1 No standard tests suggest that the students taught in the clear and functional portable are any less successful than those taught by Petitioner in the decorative and cluttered portable or vice-versa. Petitioner’s 2008-2009 school year students in the portable have evidenced the same amount of overall educational growth as did her 2007-2008 class in Building Two. Terwilliger has several playgrounds. From Building Two, Petitioner regularly used the playground to the north of that building: North Play Area No. One. The paved area outside Building Two had been extended at Petitioner’s request several years before, so that it would be accessible to two children then enrolled who were wheelchair-bound. Petitioner also used this area. Petitioner received a grant to put certain play items, like riding toys, in the North Play Area, and apparently also was commended for that initiative. In the year immediately preceding the instant complaint, while in Building Two, Petitioner’s class used North Play Area No. One, up to five times per week, and used the Head Start Play Area No. Two, between two and three times per week as part of the inclusion program. That year, Petitioner’s class used each playground under the sole supervision of Petitioner’s paraprofessional or with the paraprofessional present in the sandy area with them and with Petitioner supervising from a nearby sidewalk or the paved area. Petitioner raised no complaints about this system before the move to the portable. Both playgrounds are appropriate for Petitioner’s students. However, the Head Start playground now assigned to her portable allows Petitioner’s students the interaction/inclusion that the School’s and District’s administration desire. The distance from Petitioner’s Building Two classroom to Head Start Play Area No. Two is 460 feet. From Petitioner’s portable classroom to the Head Start Play Area No. Two is 280 feet. Petitioner has access to a third playground, the “intermediate” or “school” playground, that has a sidewalk approach, where she can get closer to the children than she can at the Head Start Playground, but the more credible evidence supports her belief that she is now “assigned” to the Head Start Playground due to the administration’s desire to foster interaction between the two types of classes. Petitioner contended that her Head Start playground assignment is inaccessible for her wheelchair. In this regard, the greater weight of the evidence is that, using her wheelchair, Petitioner cannot get directly into the sandy area of either her old playground or the Head Start Playground. Dr. Levy has become Petitioner’s friend and adviser with regard to wheelchair functionality. He is the Chief of Rehabilitative Medicine at North Florida/South Georgia Veterans Health System. In his opinion, Petitioner’s Pride Quantum 6000 wheelchair should work adequately for Petitioner over most grassy areas in sunny weather, but it will become bogged down in sandy or boggy areas. On the date of hearing, Dr. LeClear also was temporarily using a power wheelchair due to a recent injury. In her wheelchair, she has reached the Head Start Playground on the grassy area and the hard sand, but she conceded that her wheelchair will not go through the soft sand. She feels the sidewalk edge is sufficiently near for Petitioner to instruct the students with a paraprofessional closer to them. The perimeter of the school grounds is fenced, so child escape is not a viable issue. Petitioner’s old playground had sidewalks surrounding it and a paved area that allowed Petitioner’s wheelchair to get closer to its outside play equipment, possibly at a better auditory angle, and the Head Start playground has a ring of grass between the sandy play area and the sidewalk where Petitioner must stop her wheelchair. However, in either location, Petitioner would have to rely on her paraprofessional to be with the children on the sandy surface that actually constitutes the playground area, because Petitioner's wheelchair does not move well through grass and/or sand. Dr. Fox and Petitioner deplored Petitioner’s inability to get within three feet of her students on the Head Start Playground. Although Petitioner particularly laments a loss of educational opportunity because she is not able to “pour sand” with her students under the new playground constrictions, it appears that there are sand and/or rice tables for pouring sand and/or rice located between two sidewalks near the base of one of the ramps leading to her portable and that Petitioner’s wheelchair can access children and pouring activities there. Any further modifications to either playground would change their character from “playground” to something else, and more concrete might create a danger for the children climbing on equipment near or above it. Terwilliger’s Head Start playground is superior to some of the Pre-K playgrounds at other schools because it has a cover from the sun and more activities. It is suitable for the children involved; meets Pre-K standards; has newer equipment than the other playground favored by Petitioner; has fewer “pinch points”; and can be used by the special needs children now enrolled. The very fact that it has a larger sandy area than Petitioner’s previous playground seems to be a safety factor for the children involved. The District had issued a February 6, 2007, written reprimand to Petitioner with regard to her having instructed a paraprofessional to allow a child with a traumatic brain injury to play on a jungle gym in one of the playgrounds. This reprimand was required by professional practices standards simply because a complaint had been made. The issue did not revolve around which playground Petitioner was using; it revolved around unfamiliarity of those on the scene with the particular child’s Individualized Education Plan (IEP). It was an isolated incident and not representative of Petitioner’s general teaching abilities, personal responsibilities, or professional track record. However, the incident suggests that anything but sandy soil or rubber shreds for a playground can increase the danger inherent in any playground. Fire drills, tornado or inclement weather alerts, and any other untoward incident might require evacuation of the portable classroom. Such evacuations are possible for Petitioner in her wheelchair. Under fire evacuation circumstances, Petitioner may have to stay on a hard surface nearer to the school than her students do, because of her wheelchair. There is no credible evidence that this situation puts Petitioner's students, who are accompanied and overseen by a paraprofessional, or puts Petitioner, in greater danger than any of them were in whenever they had to evacuate from Building Two. Prior to litigation, Petitioner had never specifically requested that the sidewalks be extended closer to her new playground, that additional fencing be provided to keep children from “escaping” the school ground, that the District grade or otherwise alter the playground approaches for her, or that her evacuation routes be altered. Therefore, Respondent cannot be held liable for a failure to accommodate on these issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief and its underlying Charge of Discrimination. DONE AND ENTERED this 13th day of October, 2009, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 October, 2009.
The Issue The issue is whether Petitioner may terminate Respondent's contract for immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code; misconduct in office, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code; and incompetency, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1), Florida Administrative Code.
Findings Of Fact Respondent came to the United States from British Guyana in 1977. In 1988, Respondent obtained an educator's certificate and began teaching in Dade County. Petitioner hired him in 1992 and assigned him to Silver Lakes Middle School. For several years, Respondent taught language arts, which is the area in which he is certified, to all grades. Petitioner later assigned Respondent to teach students in the dropout prevention program at Silver Lakes Middle School. The students in the dropout prevention program typically represent greater academic challenges to a teacher than do their counterparts in regular education. For the past five or six years, Respondent taught dropout prevention at Silver Lakes Middle School. His teaching approach is to try to develop rapport with the students during the first nine weeks of the school year while, at the same time, identify specific areas of weakness within each student that may require attention during the school year. On October 17, 2001, Respondent administered a diagnostic test to identify areas in which students needed work. Unable to answer some of the questions, some students asked Respondent for help. Respondent declined to help because his assistance would destroy the purpose of the test. Some of the students began to misbehave. After several attempts by Respondent to control these students, they threatened to go to the office and complain about Respondent. Respondent invited the students to go to the office and complain about him. He wrote passes for several students, and several more students joined the others to visit the office, rather than take the test, and complain to an administrator about Respondent. The principal received the students in her office and listened to their complaints, which appear to have been the source of the allegations in this case. The principal took statements from the students and then returned with them to Respondent's classroom. While in the classroom, the principal helped the students with the diagnostic test that Respondent had been administering. Recognizing that the diagnostic value of his test was lost, Respondent then joined the principal in helping the students with their diagnostic test. Prominent among the students' complaints to the principal was that Respondent had struck a student, J. H. Petitioner produced little direct evidence supporting this allegation. Twice, J. H. ignored subpoenas to testify in this case. Respondent testified that J. H. later admitted to him that other boys in the class made him lie and say that Respondent hit him. J. H.'s failure to comply with subpoenas is consistent with Respondent's testimony. Absent J. H.'s testimony, it is difficult to determine exactly what, if anything, happened with him and Respondent. The most likely scenario is that J. H. succumbed to the pressures of other students in the class and lied that Respondent had hit him, knowing that the only contact that had taken place between Respondent and J. H. was incidental contact during a minor incident of horseplay. Three of the four student witnesses whom Petitioner called to substantiate the charges were unconvincing. The fourth--J. G.--was vague and unable or unwilling to supply evidence against Respondent, whom he described as "the nicest man." Student D. S. testified at the hearing that Respondent ignored the students' questions in class about classroom material, called J. H. "peanut head," called "Jarvis" "bumbleclot," told D. S. that he lacked motivation and was lazy, and told other students that they came to school looking like a "bum." "Bumbleclot" appears to be a derogatory term in a Jamaican patois, although the record does not establish the intended or actual effect that any use of the word would have in Respondent's class. When handed a previous statement, D. S. added to his complaints that Respondent often said "bloody" in class and would . . . like nudge [J. H.], like, hit him in the arm." D. S. also recalled that Respondent said "cock-eyed" in class. D. S. admitted that he never heard Respondent threaten to "pop" a student. Discrepancies exist between D. S.'s testimony and his prior statements. First, he initially omitted the most significant allegation--that Respondent struck J. H.--and, when he later mentioned it, he downplayed it to a "nudge." Likewise, D. S. initially omitted any mention of Respondent's use of "bloody." Also, D. S. never mentioned Respondent's use of "bumbleclot" in his previous statements. D. S.'s testimony establishes the unlikelihood that Respondent actually hit J. H. or that he ever threatened to "pop" a student in class. Student J. P. testified that she heard other students say that Respondent pushed D. V. out the door of the portable classroom after ejecting him from class. Due to J. P.'s admitted failure to have observed the incident, the Administrative Law Judge struck the testimony. However, despite admitting that she did not see this incident, J. P. stated that she went to the office with other students and informed the principal of the incident. J. P. also testified that Respondent often said "bloody" and refused to explain all of an assignment to her after she missed school, which she admitted happened frequently. Lastly, J. P. complained that Respondent issued her a referral for going to the bathroom. In addition to missing school, J. P. was often tardy when returning from various errands, and many times she did not do her work. J. P.'s testimony establishes only that Respondent may have said "bloody" a few times in class. Student J. G. testified that he recalled Respondent using "hell or damn" in class, although, on cross-examination, he denied any recollection of any use of either of these words. J. G. testified that he heard Respondent say something about knocking a student into next week, although he could not recall whether the latter comment was made in jest. J. G. added that he saw Respondent give J. H. "a little hit." Student D. V. testified that he saw Respondent hit J. H., although his description of the conversation accompanying the incident was materially different at the hearing than in a previous statement. D. V. testified that Respondent threatened to "pop" students and told them to "shut [their] bloody mouths." D. V. added that he asked Respondent one time if he could call his mother to bring his medication for attention deficit disorder, and Respondent denied him permission to make the call. D. V. also testified that Respondent, while sitting beside the door, pushed D. V. on the shoulder to get him out of the classroom, and D. V. responded by warning that he would get his sister to "kick [Respondent's] ass." Although D. V.'s testimony is not undermined by the inconsistencies plaguing the testimony of D. S. and J. P., D. V. shares the antipathy of these other two students for Respondent. Each of these students resented Respondent's efforts to discipline and teach them. Each of these students betrayed a desire to act in concert to get Respondent in trouble, as they felt he had gotten them into trouble. Respondent called as a witness one student, W. L., who testified forcefully that she heard the other students coercing J. H. to say falsely that Respondent had hit him. W. L. testified that the only improper word that she heard Respondent use was "bloody" and that Respondent and J. H. engaged in some horseplay in class. Perhaps the most useful witness was an assistant principal at Silver Lakes Middle School. At the end of the 2001-02 school year, the assistant principal completed an evaluation of Respondent in which he assigned him a satisfactory rating, which is the highest, in all categories, including classroom management. It is clear from the testimony of the assistant principal that he gave the complaints of Respondent's students exactly the weight that they deserved. Respondent admitted that he used "bloody" in class, but the record fails to develop the appreciation of his students for the intensity of this word in certain non-American cultures. Respondent admitted that he once used the phrase, "pop you one," but the record fails to develop the context so as to preclude the likelihood that Respondent said these words in jest. Respondent admitted that he used "cock-eyed," "skinny boy," and "bony boy," but, again, the record fails to establish a context as to permit a finding that these terms were abusive or disparaging. Respondent, who is black, mentioned that he had been called "black nugget" and "kiwi," but only as part of an effort to develop tolerance for names among students eager to take offense. Respondent ejected D. V. from the classroom for legitimate reasons. According to D. V. himself, any followup contact was with Respondent in the seated position, so as not likely to have been significant. According to another student, D. V. grabbed Respondent. At most, the record depicts an angry, disruptive student who has stubbornly refused to comply with his teacher's ejection of him from the classroom, so that other students have a chance to learn. Likewise, D. V.'s complaint that Respondent denied him the chance to call his mother for his attention deficit medication suffers for the lack of context. Undoubtedly, D. V. joined in ongoing efforts to disrupt the class and avoid receiving instruction. The only context for this request provided by the record is that D. V. asked for permission immediately after returning from lunch, when he would have had ample opportunity to call his mother. Although it is possible that D. V. first thought of the missing medication after lunch, it is at least as likely that he thought of the missing medication as a convenient excuse to extend his mid-day respite from learning. For the foregoing reasons, Petitioner has failed to prove that Respondent was guilty of misconduct in office, incompetency, or immorality.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of April, 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Carmen M. Rodriguez Law Offices of Carmen Rodriguez, P.A. 9245 Southwest 157th Street Suite 209 Miami, Florida 33157 Mark F. Kelly Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301 Tampa, Florida 33675-0638
Findings Of Fact At all times material hereto, Respondent held active Teaching Certificate 485203 with certification in Political Science and History. She is a hard worker, who, when orphaned, put herself through school, achieving a Master's Degree in Social Justice from Lewis University. Respondent was employed by Petitioner School Board as a social studies teacher at Miami Central Senior High School for the 1981-82, 1982-83, and 1983- 84 school years. During Respondent's first year with the Dade County school system, 1981-82, she was formally observed by her principal, Mr. Hal Guinyard, and other administrators. Respondent had problems with discipline of tardy students, absenteeism, classroom management and noise level control in the classroom and with devising and carrying through variations of instruction. On Respondent's annual evaluation for 1981-82, Respondent was recommended for employment but was found lacking in the area of classroom management. The specific observations leading up to this evaluation were that: Several students entered and left the room at will, other students remained in the halls during class time, some students in the classroom disturbed others in Respondent's class and even nearby classes with irrelevant and extraneous discussions and excess noise. There was excess noise from the late arrivals and those in the halls, too. The Respondent rolled on copy work from the chalkboard or text book with minimal student conversational feedback. Mr. Guinyard suggested to Respondent that she minimize busy work, create an orderly classroom environment, and explore alternative instructional techniques. On October 26, 1982, Respondent was formally observed in the classroom by Assistant Principal William Matlack, using the Teacher Assessment and Development System (TADS) of objective analysis. Mr. Matlack rated Respondent as unsatisfactory in the area of techniques of instruction. Excessive time was used by Respondent in preparing her students to take a test. Mr. Matlack prescribed help for Respondent in the area of techniques of instruction by assigning Respondent to observe three effective teachers and list four teacher activities, three student activities, and to analyze the time spent in organizing the class and in instructional activities. He also suggested that she read the TADS chapter on acceptable classroom procedures and teaching techniques and attached 33 pages of reading material to her evaluation, giving suggestions for classroom management, effective planning, techniques of instruction, and techniques of student-teacher relationships. He further advised Respondent of an in-service course in techniques of instruction. While Mr. Matlack did not rate Respondent as unacceptable in classroom management, he found that she still did not control her class for all the reasons previously noted by Mr. Guinyard. Rather than rate her as unacceptable in this area, he directed a memorandum dated October 29, 1982, to Respondent's attention indicating problem areas that could lead to further discipline problems if uncorrected. One of the problems was that Respondent was selling doughnuts for the athletic department between classes, and Mr. Matlack made her aware of the fact that students would be tempted to eat in other teachers' classes and that this was against the school rules. Respondent also was admonished concerning the security danger existing in her leaving money and keys lying about. On February 28, 1983, Respondent was again formally observed in the classroom by Mr. Matlack using the TADS and was found to be deficient in the areas of knowledge of subject matter, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was rated unsatisfactory in knowledge of the subject matter because the topics were not covered thoroughly and there was too much digression. There were 11 topics discussed and few were related to each other. Some of the areas were irrelevant, e.g., the importance of obtaining a good lawyer if one is going to win a lawsuit, how to obtain a house in Chicago, and the five black Presidents in the United States. Only 6 minutes were spent on how a bill becomes a law. Only 25 minutes were spent on the prescribed curriculum topics of cabinet duties, income tax, social security, Veterans' Administration, Federal Housing Authority, Health and Rehabilitative Services, and the Equal Rights Amendment, and the irrelevant topics already mentioned. Techniques of instruction was rated unacceptable because Respondent presented the material in a lecture form. The assignment on the board was very similar in technique (copy work for listing and defining terms, outlining a chapter) to what was used during the October 1982 observation; content was, however, different. The students were not ready for the assignment. There appeared to be no scope and sequence to the lesson. The lesson was very disjointed. The students were not involved when questions were asked, and their response was minimal. No effort was made to identify those students not participating or off task nor to involve all of them in the lesson. One or two students carried the class. Respondent did not appear to be effectively using the suggestions made by Mr. Matlack during his prior observation. Mr. Matlack explained to Respondent the need to create inspiration, create interesting presentations, move around the classroom utilizing various techniques and media, direct questions for the purpose of involving students, and for motivational use of questions geared toward individual abilities of respective students. He recommended Respondent re-read the TADS booklet that he had prescribed before. Respondent was rated "improved" in keeping grades for a variety of types of assignments in her grade book, but she still was not making informal assessments of her students' learning. Respondent was rated unacceptable in teacher-student relationships because she was not involving the students in instruction. The students appeared to do as they pleased. The classroom still did not present a neat and orderly atmosphere. The students seemed surprised at Respondent's attempt to enforce rules and regulations. This indicated to Mr. Matlack that the control was for his benefit, being implemented only for the instant period of observation. At the conclusion of the 1982-83 school year, Mr. Guinyard recommended Respondent for continued employment, but rated her overall unacceptable. He found her unacceptable for the year in knowledge of subject matter and techniques of instruction. She would continue on prescription (prescribed remediation efforts). Mr. Guinyard testified that he gave Respondent an extra year on prescription and brought in more help so that she might yet improve. During the 1982-83 school year, Mr. Guinyard recommended that Respondent observe other teachers and that she contact Mr. Hanson for help, which she did. Mr. Hanson is the Social Studies Supervisor for Dade County Schools. Mrs. Felicia Accornero (hereinafter Mrs. Mendez), is Assistant Principal for Curriculum (APC). She is not a trained social studies teacher but is certified to teach biology, chemistry, and gifted children. She is certified to work as an administrator, supervisor, or guidance counselor. Additionally, Mrs. Mendez discussed social studies concepts with other social studies teachers in an effort to be of more assistance to Respondent. On October 18, 1983, Respondent was officially observed in the classroom by Mrs. Mendez. Using the TADS analysis system, Mrs. Mendez rated Respondent deficient in the areas of knowledge of subject matter, classroom management, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in knowledge of subject matter because there were substantial errors in her presentation: incorrect spellings, incorrectly defined terminology, and unnecessary use of lay terms rather than formal terms. Mrs. Mendez' perception was that neither the students nor she, personally, understood the lesson as represented by Respondent. Mrs. Mendez recommended that Respondent work with her. Mrs. Mendez also prescribed particular pages from the TADS prescription manual, which included a detailed subject matter inventory. This was a checklist so that Respondent could understand the different areas where she could become knowledgeable so that her subject matter would be more accurate and more relevant to the students. Mrs. Mendez discussed subject matter with Respondent and discussed one lesson a week with Respondent prior to its presentation. At this time, Mrs. Mendez also rated Respondent unacceptable in classroom management because there were too many delays in the class due to the same deficiencies observed previously by Messrs. Guinyard and Matlack, specifically repetitive tardies, disruption by tardies noisy off-task irrelevant extraneous discussions among students during teaching, 50% of the time spent in opening and closing class and other non-instructional activities, lack of discipline, disorganized classroom and disorganized lesson presentation by Respondent. The lesson plan which was in Respondent's 1982-83 lesson plan book for October 18, 1983, was not the one which Mrs. Mendez observed in the classroom. She was give a separate lesson plan. Mrs. Mendez prescribed a TADS chapter on structuring classroom time so that the teacher moves from one activity to another without delay. Mrs. Mendez suggested that Respondent work with both her and the department chairman, Mrs. Consuelo Pino, to improve Respondent's classroom management. Mrs. Mendez rated Respondent unacceptable in techniques of instruction because Respondent was not following a sequence, was not clarifying directions and explanations when necessary, did not give students background information that was necessary for them to understand the topic, and did not perceive when her students did not understand the lesson. Mrs. Mendez prescribed reading a section from the TADS chapter on sequencing lessons and also prescribed help from herself and Mrs. Pino. Mrs. Mendez worked with Respondent to help her place her lesson plans in an understandable sequence. At least weekly for the next ten weeks, Mrs. Mendez helped Respondent. Mrs. Mendez provided Respondent with a book on questioning techniques, helped Respondent organize her room, showed her how to position her desk so that she would have a better view of the students, explained how a seating chart would help her keep accurate attendance quickly, explained how to utilize student folders so that materials would be easily accessible and so that the classroom and instructional techniques and procedures would accordingly be better organized. The prescription deadline was extended to accommodate Respondent. On November 8, 1983, a conference for the record was held with Mr. Mathew V. Lawrence, Mrs. Mendez, and a field representative of United Teachers of Dade. Mr. Lawrence had been Assistant Principal the first two years Respondent taught at Miami Central Senior High and became Principal there for the 1983-84 school year. The purpose of the conference was to discuss the October 18, 1983 observation and the continuing deficiencies. The prescriptions were discussed. The ramifications of continued deficiency were discussed. Respondent's responsibility for basic skills such as reading and spelling was discussed. Respondent was reminded that she was responsible not only for her subject matter, (history, social studies, political science) but for students' basic skills (reading, writing, spelling, grammar). 24.. On November 12, 1983, Mrs. Mendez again formally observed Respondent in the classroom using the TADS analysis technique. Respondent was aware that she would be observed that day. Respondent showed some improvement over the prior observation in that she presented some accurate information for most of the period; however, Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in preparation and planning because her objective was too simple and she did not list activities and assessment techniques, as required. Thereafter, Mrs. Mendez worked with Respondent on writing lesson plans and helped her write lesson plans. Mrs. Mendez found Respondent unsatisfactory in knowledge of the subject matter because Respondent made inaccurate statements, used incorrect grammar, and gave opinions rather than presenting both sides of an issue to students. Mrs. Pino made the same observation. During some parts of the lesson, it appeared that Respondent did not know what she was talking about. While the students appeared to understand most of the lesson, at times they did not. Mrs. Mendez also concluded that Respondent was not adhering to a structured plan but for this formal observation for the last formal observation Respondent had prepared lesson plans for observation days separate and apart from her normal procedure/plan for non-observation days. To improve Respondent's knowledge of subject matter, Mrs. Mendez recommended that Respondent review and study the textbook chapters prior to teaching the lesson because it did not appear that Respondent was doing this. Mrs. Mendez also gave Respondent the opportunity to prepare lessons and to explain them to Mrs. Mendez ahead of the time Respondent would present the material to the class so that Mrs. Mendez could monitor whether or not the information would be clearly presented to the class. Mrs. Mendez rated Respondent unacceptable in techniques of instruction upon much the same grounds as she used to substantiate the unacceptable rating for the categories of preparation and planning and knowledge of the subject matter, all essentially relating back to inadequacy of Respondent's lesson plans, or that the lesson plans were created solely for observation or to satisfy a prescription and were not for actual use. Petitioner's Exhibit 12 does not reflect a specific written prescription in this category, but Mrs. Mendez' oral testimony indicated further emphasis and helpful work on lesson plans was initiated. Respondent was next formally observed by Mr. Matlack on January 19, 1984. Respondent showed improvement this time but Mr. Matlack noted that Respondent needed to record her students' grades in her grade book more promptly as she received them. He also rated her unacceptable in classroom management primarily because of continued disruptions from tardy arrivals. Mr. Matlack directed Respondent to establish rules and regulations for students about coming into the class on time, bringing the needed materials, staying until the period ends, and prohibiting visitors into the classroom. He gave her specific suggestions on how to make these improvements and provided her with a memorandum outlining the deficiencies and prescribed help. Respondent's lesson plan for January 19, 1984, in Respondent's 1983-84 lesson plan book was only partially covered in the period observed that day by Mr. Matlack. On February 8, 1984, Mr. Lawrence rated Respondent unacceptable in classroom management on her midyear annual evaluation for 1983-84. On February 10, 1984, Mr. Lawrence held a second conference for the record with Respondent to discuss her performance assessments to date and his recommendation that she not receive a fourth year of annual contract. He also advised her that if she cleared her deficiencies, he would rescind his recommendation and would recommend a continuing contract. Respondent agreed to a fourth year annual contract. On March 13, 1984, Mr. Lawrence made his first official classroom observation of Respondent according to the TADS and found her to be very deficient. He felt that no teaching and learning were taking place. He observed her to be deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Mrs. Lawrence found Respondent unsatisfactory in knowledge of subject matter because the definitions she gave for vocabulary words were not accurate and not appropriate. The students did not seem to understand the class work. Respondent was not gearing the lesson for all of her students. The lesson plan in Respondent's 1983-84 plan book for March 13, 1984, was not the plan Mr. Lawrence observed being implemented that date. Mr. lawrence prescribed for Respondent to prepare lesson plans for five days that detailed the sequencing of concepts and how each concept would be explained and implemented. Respondent was to include a minimum of five ideas and concepts and give the cognitive levels covered in each area. Mrs. Mendez and Mrs. Pino were recommended as resources. Respondent was rated unacceptable in classroom management because students were coming to the room late and being admitted without any evidence they had been detained elsewhere and without reprimand or punishment by Respondent. There was no evidence the students had any knowledge of the correct procedure. Step by step instructions for correcting her classroom management in this area were given to Respondent by Mr. Lawrence. Mr. Tom Shaw later helped her in this area. Mr. Lawrence rated Respondent unacceptable in techniques of instruction because the only two methods she used during the class period were writing definitions for 10 minutes and answering questions from the end of the chapter in the textbook for 45 minutes. The questions at the end of the chapter were unrelated to the vocabulary work. Respondent gave no introduction to the material. There was no evidence of the students understanding the materials, and no opening or closure to the lesson. In order to aid Respondent to improve her techniques of instruction, Mr. Lawrence recommended that Respondent develop a list of at least 10 teaching techniques or suitable teaching methods. He directed her to utilize a minimum of two methods permitting students to actively participate. He directed her to prepare lesson plans for a week that demonstrated these methods and how the students would be involved. He suggested that Mrs. Mendez and Mrs. Pino be used as resources. Respondent was rated unacceptable in assessment techniques based on four student folders selected at random, each of which contained only five test cares and one or two additional sheets of work. The work in the student folders was not representative of what should have been there so late in the school year and therefore students' work was not accurately documented and could not be properly assessed for grading the child. The help that Mr. Lawrence prescribed for Respondent was to prepare two written assessment items per week for three weeks. Each test was to contain a variety of at least three types of questions. He wanted other corrected items such as homework and class work to be contemporaneously placed in student folders. He assigned Mrs. Mendez and Mrs. Pino to help Respondent. Pursuant to Mr. Lawrence's March 13, 1984 prescription, Mrs. Mendez explained to Respondent in a memorandum what was required in the student folders. Subsequently, when Mrs. Mendez reviewed the student folders, she found a student paper consisting of one incomplete sentence fragment graded "A". The student's grammar was not graded (p 14). This one example was clearly contrary to the criteria established by Mrs. Mendez and contrary to the criteria established by Mrs. Mendez and contrary to the instructions for the assignment outlined by Respondent but it still had been graded "excellent." At hearing, Respondent denied that she gave the paper an "A" and asserted that she would require from this particular student two examples the next day. On April 24, 1984, Respondent was formally observed simultaneously by two administrators (Mrs. Mendez and Paul Hanson) and was found by both administrators to be unsatisfactory in the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent had lesson plans and objectives based on the county curriculum, but was rated unacceptable in preparation and planning because her plans were not effectively implemented. She did not fill the allocated class time although only about 10% of the planned material was covered. One of the nine listed topics was "Communism." Section 233.064, Florida Statutes, spells out the content and mandates 30 hours for curriculum in "Americanism vs. Communism." On eleven different occasions, Mr. Hanson noted students were totally off task, disruptive and loud, and discussing topics that were not relevant to the lesson on Communism. The students were talking in little groups and in Mr. Hanson's opinion nothing academic was learned by the students during the period and consequently the students might thereby fall short of the statutorily required 30 hours. As a means to help Respondent, Mrs. Mendez suggested that Respondent prepare lesson plans for one week and check with the Assistant Principal who would observe the class to see if the plans were implemented. She recommended that Respondent seek help from both herself and Mrs. Pino. Respondent was rated unsatisfactory in knowledge of subject matter because the information that she provided concerning Communism was not accurate. There were a number of errors made by Respondent during the course of the lesson. Mr. Hanson prescribed help for Respondent by working with Dan Jones, Social Studies Specialist, during the week of May 11, 1984. Respondent was rated unacceptable in classroom management because of the numerous disruptions, extraneous conversations, and constant movement. Student tardiness was noted yet again. Respondent appeared frustrated but was not able to effectively control the situation and did not take any steps to correct or penalize the tardy students. As a means of helping Respondent, Mrs. Mendez suggested that Respondent work with Mr. Shaw who is the assistant principal that generally monitors attendance and discipline problems. Respondent was rated unacceptable in techniques of instruction because she did not deliver the instructional program acceptably in many areas. Also, upon the same grounds, Mr. Hanson prescribed help from Mr. Jones on this element. By memorandum dated May 7, 1984, Mr. Lawrence changed his recommendation for extended annual contract to dismissal because Respondent had failed to remediate her deficiencies and she was now more deficient than when he had observed her in March. Pursuant to Mr. Hanson's prescription of April 24, 1984, Mr. Jones worked with Respondent on May 17, 1984. He brought her material to use and discussed a number of areas: lesson planning and format, techniques, the Dade County balanced curriculum objectives, the possibility of his visiting one of her classes to provide feedback to her about her techniques of instruction, a possible policy of limiting hall passes, a technique for engaging students in group activities, and the need for having at least two activities per class. He brought three books for her to use, Ideals and Ideologies, The Russians, and Practical Methods for the Social Studies. He assisted with her lesson planning for the week of May 21-25, 1984. On May 24, 1984, Mr. Lawrence completed the annual evaluation of Respondent, rating her as deficient in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. This constituted three more unacceptable areas than on her midyear evaluation. Mr. Jones returned to help Respondent on June 4, 1984. Based upon his visitation, he wrote several suggestions for Respondent. Subsequently, when Mr. Jones observed the class, Respondent was attempting to implement some of the recommendations he had made but the presentation was not well structured or organized. Approximately fifty percent of the class period was lost in digressions and expounding of Respondent's personal opinions. Mr. Jones testified that it is appropriate for teachers to get students to express their opinions; however, those opinions should be based on knowledge of the course concepts and should come from the students, rather than from the teacher so as to encourage students to think independently, to make rational decisions, and to not merely absorb their teacher's opinion. In time of confusion, Respondent unduly delayed clarification of instructions. Mr. Jones opined that if he had been a student, he would have had to have asked questions also and in his opinion, the students were being deprived of a minimum acceptable level of instruction. On June 7, 1984, Respondent was again formally observed by two administrators (Mr. Hanson and Mr. Shaw) using the TADS analysis system. Respondent was rated unacceptable in knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Respondent's performance had declined since Mr. Hanson's prior observation. She now was rated as having one acceptable category out of six. Mr. Hanson noted that the "students would have been better off to review without teacher's assistance." Respondent gave incorrect information and was very vague. She made several content errors and confused government forms with economic systems, using the terms synonymously. Mr. Hanson, under the impression that Respondent was still being recommended for a fourth year annual contract, recommended that she take course work over the summer in classroom management and subject matter. Respondent was rated unacceptable in classroom management because again there were at least nine interruptions of the same kinds as previously observed. However, where previously the Respondent had ignored inappropriate behavior, this time she indulged in a disruptive outburst reprimanding one student very loudly. There was a student in the room who had been withdrawn from school two weeks prior and recently readmitted. In returning this student to the office for a status check, Mr. Shaw missed several minutes of Respondent's class and his observation is somewhat impaired by this absence. It is to Respondent's credit that even during this period of suspension, this particular student sneaked into school to attend her class. At no time were more than half of the students observed to be on task. Mr. Shaw recommended that the Respondent work with Mr. Hanson to improve her classroom management. Respondent was rated unacceptable in techniques of instruction because there were only passive activities being pursued and there was little feedback from the students. Respondent's technique was ineffective in encouraging class discussion. There was inadequate use of media. Because the lesson was not in proper sequence, it created academic confusion. Again, Mr. Shaw recommended that Respondent seek help from Mr. Hanson. Respondent was rated unsatisfactory in teacher-student relationships because of the general lack of respect on the part of the students and because of Respondent's erratic reaction to the student's behavior. The observers prescribed the same help. Respondent was rated unacceptable in assessment techniques because there was no means of assessing whether or not the students were understanding the review process that was taking place. The observers prescribed the same help. In 1983 Respondent was referred to a nine-credit social studies course taught by Mr. Hanson at Nova University as part of the administration's attempts to help her master the subject matter of her course. She cooperated by taking the course but failed it. Complaints of misgraded, missing, and plagiarized papers arose among students in Respondent's classes. Administrators concluded that Respondent lacked an appropriate procedure for receiving, organizing, and monitoring papers for grading purposes. Students and parents complained that no effective teaching was going on and that the disorganization in the classroom even prevented individualized learning. On another occasion, Respondent was informally observed by administrators giving wrong information to students as to the number of municipalities in Dade County. Administrators also observed that her grammar, verb tenses and word choice were not a good example to her students. The undersigned observed this pattern at hearing. At the hearing, Respondent testified to an incorrect number of Florida counties. During her testimony, Respondent used the non-word, "malicy" instead of "malice." She used the word "connotatins" several times in contexts which more properly would have required either the word "confrontations" or "altercations." In no respect was "connotations" an appropriate word selection and Respondent defined the word "connotations" as meaning "disagreements." Respondent contended that her emphasis on rote copying from the board and reading aloud was an appropriate response to large classes the majority of whose members did not possess basic skills. Respondent explained that what her observers perceived as her poor grammar was actually "street talk" she intentionally used to reach culturally deprived students. While these may have been legitimate motivations, they do not excuse Respondent's never having progressed in the use of proper grammar and varied teaching techniques for communication with students when other teachers in the same school were able to do so. Respondent's explanation also does not ring true in light of Respondent's numerous grammatical and content errors during her own testimony. Mrs. Pino, the department head, offered additional help to Respondent during Respondent's three years at Miami Central Senior High School. She discussed classroom management, ways to diversify teaching, and other problems which came up on a daily basis. She discussed parent contacts in order to help with classroom management. She gave Respondent additional copies of some papers that Respondent has lost. She reviewed lesson plans with Respondent many times and on occasion would review a lesson plan with her prior to an administrator's observation. Pursuant to Mrs. Mendez' request, Mrs. Pino observed a whole period in order to help Respondent learn how to make smooth transitions from one classroom activity to another. Respondent testified that she encouraged students to borrow books from her even if it meant looking the other way when she knew they were removing them. Loaning or giving books away might be altruistic upon Respondent's part, and indeed, helpful to students' learning the subject matter or developing a love of history, reading, etc., but Respondent's practice of encouraging the fantasy of theft for learning's sake is hardly in the best interests of the child or the teaching profession. Respondent, a Negro, contended that it was her attempts to instill in her students pride in their Black heritage which resulted in her negative ratings. She based this primarily upon body language of Mr. Matlack she said she observed when she showed him the pamphlet "The Five Negro Presidents" (R-1). She claimed there existed a rehearsed "plot" by all the Petitioner's witnesses on the basis of either her minority heritage views or on the basis of her election as a steward in the union, United Teachers of Dade. This explanation is not credible. While "Black History" may certainly be a valid part or enrichment of a high school social studies curriculum, it cannot legitimately usurp all of the class time properly allotted to prescribed curriculum. Moreover, inaccurate history, even inaccurate Black History, serves no valid purpose. The undersigned finds that it was not this theme on a single occasion which observers were concerned with in rating Respondent, but the inaccuracy and confusion of her presentation of that theme which resulted in her negative rating on the one occasion to which she refers. Also this pamphlet was not used at every observation and cannot be attributed as the incentive for so many negative ratings by so many different observers. It is also noted that Mrs. Mendez and Mrs. Pino are of Hispanic background. Although Respondent has responded to criticism positively, was eager to improve, and cooperated readily in all of her observers' suggestions, she still never achieved the standards of competency required and expected by the Dade County School Board. This is so despite extensive efforts of her colleagues to help Respondent reach acceptable performance standards. Respondent has failed to teach efficiently and faithfully due to her failure to communicate and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience.
Recommendation Upon the foregoing findings of face and conclusions of law, it is RECOMMENDED that the Dade County School Board enter a Final Order in Case No. 84-3171 finding Respondent guilty of incompetency, affirming her suspension, dismissing her from her employment with the Dade County School Board, and denying her any claim for back pay. Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order in Case No. 84-3171A finding Respondent guilty of incompetency and incapacity and revoking her Florida Teacher's Certificate for ten years, subject to reinstatement as provided by law. DONE AND ENTERED this 27th day of March 1985 in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1985. COPIES FURNISHED: Craig R. Wilson, Esquire The Law Building, Suite 204 315 Third Street West Palm Beach, Florida 33401 Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Miami, Florida 33132 William Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Petitioner, St. Lucie County School Board (Petitioner or School Board) has just cause to discipline Wendy Portillo's employment based on the conduct alleged in the “Statement of Charges and Petition for One Year Suspension Without Pay and Return to Annual Contract” and the appropriate penalties, if any.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in St. Lucie County, Florida. Petitioner has entered into individual contracts and collective bargaining agreements with the teachers it employs and has adopted rules and policies that control the activities of its teaching professionals. At all times relevant to this proceeding, Respondent was a teacher employed by Petitioner pursuant to a professional services contract and assigned to teach kindergarten at Morningside. On May 21, 2008, Respondent was teaching kindergarten in her classroom at Morningside. The door to Respondent’s classroom is across a hall from the door of the school office. Typically, kindergarten students are five or six years old. Student 1, a male, was one of 17 students in Respondent’s class on May 21, 2008. Student 1 was assigned to Respondent’s class in January 2008. Shortly after his placement in her class, Respondent asked Mr. Graff to help her with Student 1 because of Student 1’s behavior. Mr. Graff works in Morningside’s fourth grade alpha class. The alpha program is designed to identify and assist at-risk third grade students who are having difficulties at home or at school. Mr. Graff has the assistance of a full- time counselor and a full-time paraprofessional. Mr. Graff agreed to help with Student 1 as needed. Student 1 came to Mr. Graff’s classroom on approximately 12 occasions between January and May 21, 2008. In mid-February 2008, Respondent requested a Child Study Team for Student 1, which is the first step in determining whether a student meets the eligibility requirements for services from Petitioner’s Exceptional Student Education (ESE) program. This development is part of an on-going process.3 The Child Study Team, of which Respondent was a member, developed strategies designed to redirect Student 1’s behavior. One of the strategies was a reward system utilizing tokens. On May 21, 2008, Respondent’s kindergarten class began at 8:20 a.m. At 9:00 a.m. Respondent’s kindergarten class, including Student 1, went to a performance by the fifth grade that ended at approximately 9:45 a.m. The students returned to Respondent’s classroom at approximately 10:00 a.m. At approximately 10:30 a.m., while she was teaching her class, Respondent observed that Student 1 was off-task and was being disruptive to the other students by flipping crayons at his classmates and crawling under a table. Student 1 pushed up on the table, where other students were trying to work. Respondent attempted to redirect Student 1, but she could not do so. Respondent summoned Officer Black (the school resource officer) to come to her room. Officer Black assisted in getting Student 1 out from under a table and took him to the office. After Officer Black had escorted Student 1 to the school office, Ms. Gascoigne (the assistant principal) counseled Student 1 as to appropriate versus inappropriate behavior. Student 1 told Ms. Gascoigne that he realized what he had done was wrong and that he wanted to say to Respondent that he was sorry. After keeping Student 1 in the office for approximately 15 minutes, Ms. Gascoigne sent Student 1 back to Respondent’s classroom. There was a dispute in the record as to whether Respondent sent a written referral to the office when Officer Black escorted Student 1 to the office at approximately 10:30 a.m. The office did receive a written referral from Respondent on May 21, 2008, pertaining to Student 1’s misbehavior. The inference was that pursuant to School Board Policy 5.33, which pertains to removal of students from a classroom as opposed to a disciplinary referral of a student for misbehaving in class, the office personnel should have detained Student 1 for a longer period of time than 15 minutes if Respondent had sent a written referral with him. The greater weight of the credible evidence established that School Board Policy 5.33 is inapplicable due to Student 1’s level of disruption. Moreover, the greater weight of the evidence established that Ms. Gasciogne did not receive the written referral until the afternoon of May 21, 2008, after the occurrence of the events at issue in this proceeding. When she had Officer Black take Student 1 to the office at approximately 10:30 a.m. on May 21, 2008, Respondent did not ask Ms. Gascoigne or anyone else in the office to detain Student 1 for a particular length of time. When Student 1 returned to her classroom, Respondent was in a meeting area where the students were gathered for group instruction. Respondent asked Student 1 why he had returned to the classroom. Student 1 responded to the effect that Ms. Gascoigne had sent him back. Referring to herself and to the other students in her class, Respondent responded to the effect that, “I don’t know if we are ready to have you back at this time.” After making that statement, Respondent directed Student 1 to join her in front of his classmates. Respondent asked Student 1 why he had done the things he had done earlier that morning. Student 1 shrugged his shoulders. Respondent told Student 1 that shrugging his shoulders was not an answer and that he should use his words. Three or four students began saying things about how Student 1 had behaved. Respondent asked Student 1 to listen to his classmates and asked him how what they were saying made him feel. Referring to herself and to the other students, Respondent stated that she did not think we are ready for you to come back at this time. Respondent then announced that she was going to poll the class as to whether Student 1 could rejoin them. Respondent explained to the class that a poll was like taking a vote. Respondent asked each of Student 1’s classmates to verbally vote yes or no whether Student 1 should remain in the classroom and gave each student the opportunity to explain his or her vote. Respondent tallied the votes on the chalk board. The final vote was 14 for removing Student 1 and two for allowing him to remain.4 Respondent thereafter sent Student 1 back to the office. Respondent made the ultimate decision to exclude Student 1 from her classroom, but in making that decision she considered the votes that had been cast by Student 1’s classmates. The reward system utilizing tokens was in place for Student 1 on May 21, 2008. There was insufficient evidence to establish that Respondent utilized the reward system or any other strategy, including the use of Mr. Graff’s class, that had been developed for Student 1 before sending him to the office on the first occasion or before removing him from her class after the classmates had cast their votes and made statements about his behavior. When Student 1’s mother came to pick Student 1 up from school on the evening of May 21, 2008, she told Respondent that she had embarrassed her son and that he was disabled and autistic. Respondent apologized to Student 1’s mother. Student 1 was with his mother when she made the quoted statement to Respondent and when Respondent apologized. When asked by his mother how he felt, Student 1 said he felt sad. Except for her conduct on the May 21, 2008, incident described above, Respondent has had a positive 12-year career as a teacher at Morningside. Respondent testified that at no time did she intend to harm, embarrass, or do anything negative to the student. Respondent further testified that she did not, at the time think she was hurting anyone. She believed that she could show all of her students that there are consequences to actions and to show that actions may affect others. Respondent testified, credibly, that early childhood education is her “passion” (as she termed it at Transcript, Volume III, page 275, beginning on line 11). Petitioner’s investigative report reflects (beginning on page 13 of Petitioner’s Exhibit B) the following: There is no evidence that Ms. Portillo’s conduct was malicious or intended to cause harm or embarrassment to Student 1. However, there is a question as to whether Ms. Portillo exercised the best professional judgment during the incident under investigation. . . . Immediately following the incident of May 21, 2008, Petitioner prohibited Respondent from returning to Morningside. Petitioner assigned Respondent to the School Board office with pay while Petitioner investigated the matter. On November 14, 2008, Mr. Lannon made his recommendation to the School Board. The recommendation was that Petitioner suspend Respondent for a period of one year dating from the School Board’s final order and that her contract be changed from a Professional Services Contract to an Annual Contract. At its meeting of November 14, 2008, the School Board suspended without pay Respondent’s employment for a period of one year and voted to change her contract from a Professional Services Contract to an Annual Contract should she return to employment with the School Board.5 The greater weight of the credible evidence overwhelmingly established that Respondent’s conduct on May 21, 2008, described above is properly characterized as misconduct as that term is generally understood. As will be discussed below, Petitioner established that Respondent’s conduct on May 21, 2008, violated the Code of Ethics of the Education Profession in Florida and the Principles of Professional Conduct for the Education Profession in Florida, thereby violating the provisions of subsection (xxix) of School Board Rule 6.301(3)(b), as alleged in paragraph 18 of the Petition. Petitioner established that Respondent’s misconduct on May 21, 2008, violated subsection (xxxi) of School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the Petition by exposing Student 1 and the other students in her class to unnecessary embarrassment or disparagement. Petitioner established that Respondent utilized an inappropriate method of discipline in removing Student 1 from her class after the class vote, thereby violating subsection (xxxvii) of School Board Rule 6.301(3)(b), as alleged in paragraph 18 of the Petition. Petitioner failed to establish that Respondent was abusive or discourteous in violation of subsection (ix) of School Board Rule 6.301(3)(b) as alleged in paragraph 18 of the Petition. Mr. Lannon, Ms. Ranew, Ms. Gascoigne, and Ms. Cully are experienced educators with supervisory responsibilities. Each opined that Respondent had violated the Code of Conduct for the Education Profession and explained the reasons for those opinions. Petitioner established that Respondent failed to exercise the best professional judgment on May 21, 2008, as alleged in paragraph 19a of the Petition. The alleged violation set forth in paragraph 19b will be discussed below. Petitioner failed to establish that Respondent’s misconduct was unethical and, consequently, failed to establish the violation alleged in paragraph 19c of the Petition. Petitioner established that Respondent failed to make reasonable effort to protect Student 1 from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety as alleged in paragraph 19d of the Petition. Petitioner established that Respondent failed to make reasonable effort to protect Student 1 from harassment as alleged in paragraph 19(e) of the Petition. Petitioner has charged Respondent with “misconduct in office.” There is a difference between the generally used term “misconduct” and the term “misconduct in office.” The State Board has defined the term “misconduct in office” by Florida Administrative Code Rule 6B-4.009(3), as follows: (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system. While there can be no meaningful debate as to whether Respondent's conduct should be characterized as “misconduct,” there was a dispute as to whether Respondent’s effectiveness in the school system had been impaired, thereby establishing that Respondent was guilty of “misconduct in office” as alleged in the Petition. This incident received extensive coverage by the local, national, and international press. Locally, Petitioner received a high volume of written communications and telephone calls in response to Respondent’s conduct. Some communications supported Respondent’s conduct while others condoned Respondent’s conduct. The communications condoning Respondent’s conduct far outweighed the responses supporting her conduct.6 Petitioner received requests from parents that Respondent not be allowed to teach their students should she return to class. In addition to the negative publicity and negative communications generated by her conduct, Respondent’s principal has lost confidence in her. Ms. McCully testified as follows in response to questions from Petitioner’s counsel (Transcript, Volume III, beginning at page 371, line 17): Q. After the May 21, 2008, incident involving Ms. Portillo, would you recommend that she be hired as a teacher in your school? A. No, I would not. Q. Why is that? A. Personally, I feel that I would not have that rapport, trust, with her and be able to work with her after this. Dr. Lannon testified as follows in response to questions from Petitioner’s counsel (Transcript, Volume I, beginning at page 106, line1): Q. In your opinion, has Ms. Portillo’s actions on May 21, 2008, resulted in a loss of her effectiveness. A. I believe so. Q. How do you reconcile that with your recommendation that she can go back to work after a one-year suspension without pay? A. I came to that with great pain. I believe that the actions that Ms. Portillo undertook actually rose to the issue of termination. But also, in a sense of fairness, Ms. Portillo is a twelve-year employee who has contributed to the lives and the well-being of children in St. Lucie County. My sense on this was that while there is a price to pay – and I believe that the action of not protecting children is literally the most serious thing we can do in a negative way – that her past career would warrant a second chance, but not in the environment in which she had willfully created these series of steps leading to the involvement of a particular child in what I believe to be an embarrassing and disparaging way and the involvement of the class in a way that we may never know. Q. Did you consider terminating Ms. Portillo? A. I did. Q. And is it my understanding that you’re saying the fact that she had twelve positive years mitigated that decision. A. Yes. That’s exactly correct. Q. And that led you to the recommendation that’s at issue? A. That’s exactly right. On cross-examination, Mr. Lannon testified in response to questions by Respondent’s counsel (Transcript, Volume II, beginning on page 149, line 25): Q: And you’re of the opinion as you sit here today, Mr. Lannon, under no circumstances . . . that you would allow [Respondent] to teach elementary school children in St. Lucie County. I would not put her in pre-K through fifth grade. That’s the definition. So that would be correct. In his testimony at the formal hearing and in his letter of November 3, 2008, Mr. Lannon described the mitigating circumstances he considered in contemplating his recommendation to the School Board. The following, taken from Mr. Lannon’s letter, succinctly states those considerations: I have also considered mitigating circumstances. You have had a long (12 years) and positive career in St. Lucie County Public Schools. Your annual evaluations, conducted by five Principals over 12 years are positive. Behavior of young students, in groups such as classrooms, is often difficult and professionally demanding. The official investigation states “there is NO evidence that Ms. Portillo’s conduct was malicious or intended to cause harm or embarrassment . . . “ [Emphasis in the original.] Except for the conduct at issue in this proceeding, Respondent has been an excellent, dedicated teacher during her 12-year tenure at Morningside. She has spent a considerable amount of her personal time working on an extra-curricular activity named Odyssey of the Mind. Many of the employees at Morningside and parents of former students are supportive of Respondent. As to those employees and parents, Respondent’s reputation remains intact despite the negative publicity regarding the conduct at issue.7 The greater weight of the credible evidence clearly established that Respondent’s conduct on May 21, 2008, has impaired her effectiveness in the system. Petitioner established that Respondent’s conduct on May 21, 2008, constitutes “misconduct in office” within the meaning of Florida Administrative Code Rule 6B-4.009 and, consequently, constitutes grounds for the suspension of her employment pursuant to Section 1012.33(6)(a), Florida Statutes, which provides, in relevant part, that the employment of a teacher with a professional services contract can be terminated or suspended for just cause, which is defined to include “misconduct in office” as defined by State Board rules. Section 1012.33(4)(b), Florida Statutes, provides, in relevant part, as follows: (b) Any . . . member of the instructional staff . . . may be returned to annual contract status for another 3 years in the discretion of the district school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the district school board on or before April 1 of any school year, giving good and sufficient reasons therefore . . .. In explaining the rationale for his recommendations, Mr. Lannon testified as follows in response to questions from counsel for Respondent as to his recommended disposition of this matter (beginning at Transcript, Volume II, page 133, line 15): Q. What would happen in the one year that would allow her, from the year that you’re recommending that she be suspended to the year that she, if your recommendation is accepted, that she would come back to work for the School Board, what would happen in that year that would change the alleged loss of respect and confidence in her colleagues first? A. It might not. Q. Your same answer would be as it relates to students? A. Yes, sir. Q. And the parents. A. That’s correct. I have no knowledge of how they would feel. Q. So in essence, you’re allowing, you’re recommending that a person that you’re not sure would be respectful [sic] or confident [sic] by teachers, students, parents, and members of the community, you’re recommending that that person still work for the St. Lucie County School Board. A. I’m allowing that the 12 years prior to May 21, 2008, mitigated my thinking that said this person is deserving of another chance at some point in time. Q. And this chance that you’re talking about is not a chance of great risk or harm if I follow your logical conclusion; is that correct. A. If you look at it more fully, you’ll see that I would not allow her to teach at that grade level in an elementary school again. And there is a difference in the ability of students to be able to discern the words of adults as they age. And I’m going to bank on the fact that the quality that Ms. Portillo had previously shown, absent her actions on that day, which I believe to be premeditated and well thought out, even though they were quick, would not occur again. There can be little doubt that Respondent has been traumatized by the negative reactions to her misconduct.8 Respondent and her family have suffered economically as a result of her suspension. Respondent apologized to Student 1’s mother and testified that she is remorseful.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order uphold the suspension of Respondent’s employment for a period of one year from November 18, 2008, and provide for the change of her contract status from a Professional Services Contract to an Annual Contract, contingent upon the availability of a position for which Respondent is qualified and certified. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2009.
The Issue Whether Respondent's employment as a teacher by the Miami- Dade County School Board should be terminated for the reasons specified in the letter of notification of suspension and dismissal dated June 20, 2013, and the Amended Notice of Specific Charges filed on October 2, 2013.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1001.32, Florida Statutes. At all times relevant to this proceeding, Respondent was employed as a special education ("SPED") teacher at Mandarin Lakes K-8 Academy ("Mandarin Lakes"), a public school in the Miami-Dade County Public School District, pursuant to a professional services contract. At all times relevant to this proceeding, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies and procedures, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. Respondent's Classification During the 2012-2013 school year, it is undisputed that Respondent was classified as a SPED teacher. Petitioner's Amended Notice of Specific Charges avers that Respondent was employed as a SPED "inclusion teacher." Respondent, in his Proposed Recommended Order, also maintains that, during the 2012- 2013 school year, he was a SPED inclusion teacher. Petitioner's witnesses, however, presented conflicting evidence regarding whether Respondent, for the 2012-2013 school year, was charged with the duties and responsibilities of an inclusion teacher or a "co-teacher." Inclusion teaching occurs where "two or more teachers are assigned to a group of students, but one of the teachers is responsible for only one student or a small group of students in the classroom." See § 1003.03(5)(c)2., Fla. Stat. "Co-teaching" is when "two or more teachers are assigned to a group of students and each teacher is responsible for all of the students during the entire period." See § 1003.03(5)(c)1., Fla. Stat. Moreover, in the co-teaching setting, "each teacher is responsible for planning, delivering, and evaluating instruction for all students in the class or subject for the entire period." Id. The undersigned ultimately finds that, during the 2012- 2013 school year, Respondent was a SPED inclusion teacher. As such, Respondent was responsible for providing support to a small group of special education students within the general education classroom.1/ The Events Giving Rise to this Proceeding Petitioner alleges, in its Amended Notice of Specific Charges, that,"[d]uring the 2012-2013 school year, school administrators observed Respondent in his capacity as a SPED inclusion teacher and noticed issues with his teaching ability." In April 2013, Angela Fleites, the principal of Mandarin Lakes, formally observed Respondent in the classroom. Principal Fleites broadly enumerated Respondent's responsibilities to include: (1) ensuring the children were on point; (2) following and processing instruction; and (3) having success in the particular lesson. Principal Fleites observed that Respondent was not focused on the task at hand and was not paying attention to the needs of the special education students. Specifically, she observed Respondent "walking aimlessly" around the room without direction or specific purpose. During the April 2013 formal observation, Respondent provided Principal Fleites with a copy of his lesson plans. While the lesson plans were appropriate, Principal Fleites, without offering any specificity, opined Respondent was not implementing the lesson plans. Principal Fleites also observed Respondent failing to re-direct off-task behavior of special education students. Based on the facts recounted above, Principal Fleites opines that Respondent did not address the individual learning needs of his SPED students. In a follow-up formal observation conducted in May 2013, Principal Fleites observed that Respondent was paying more attention to the primary teacher than the needs of the special education students. Again, Principal Fleites observed Respondent walking around the classroom aimlessly and providing very little, if any, redirection to the students demonstrating off-task behavior. Respondent, as requested, provided his lesson plans to Principal Fleites during the May 2013 observation. Again, she opined that while the lesson plans were appropriate, Respondent failed to implement the same. Principal Fleites, however, could provide no greater detail on this point other than "the lesson plan clearly talked about the individual needs of students and meeting those individual needs, and that was not happening. . . ." Based on the above observation, Principal Fleites opined Respondent was not addressing the academic needs of his students. Principal Fleites is familiar with Petitioner's procedure regarding a fitness-for-duty exam.2/ Despite her familiarity, she never asked or requested that a fitness-for-duty determination be conducted for Respondent. She did however, on two occasions, recommend Respondent to the Employee Assistance Program; however, Respondent did not present himself to same. In December 2012, Renita Lee, an assistant principal at Mandarin Lakes, formally observed Respondent in the classroom. During this 30-minute observation, Ms. Lee recalled Respondent simply standing in a corner in the back of the classroom. On that occasion, Respondent did not have lesson plans available for review. During this observation, Ms. Lee noticed several students who were off-task; however, Respondent did not address the behavior. Ms. Lee's recollection was that at least two of the off-task students were special education students. Based upon the aforementioned facts, Ms. Lee opined that Respondent failed to address the students' individual learning needs during the 30-minute observation period. Ms. Lee again observed Respondent in the classroom in January 2013. On this occasion, Ms. Lee observed, over a two- hour period, Respondent walking aimlessly around the room. She testified that Respondent neither assisted nor re-directed the students. Based on the above-observation, Ms. Lee opined that Respondent did not address the academic needs of his students. Ms. Lee noted that Respondent was "supposed to focus on students that are in need of assistance for a particular benchmark." A benchmark, as defined by Ms. Lee, is "a set of objectives that students are expected to know to where they were going to actually be tested on for FCAT." Ms. Lee acknowledged that, through testing and available test results, one can determine whether Respondent's students have met the particular benchmarks. At times, Ms. Lee observed that Respondent had fallen asleep while sitting upright in a faculty meeting. Kenneth Williams, an assistant principal at Mandarin Lakes during the 2012-2013 school year, formally observed Respondent in the classroom in March 2013. Mr. Williams observed that Respondent was "in a daze" and not paying attention to the needs of the learners. Mr. Williams testified that Respondent did not redirect two students who were displaying off-task behavior.3/ During the same observation period, Mr. Williams received a piece of paper from Respondent; however, the same was not a typical lesson plan in that the document did not outline Respondent's duties and instructions for the SPED students on that occasion. John Soderholm, an eighth-grade science teacher at Mandarin Lakes, perceived Respondent as a "co-teacher" in his classroom. With that belief, Mr. Soderholm was critical of Respondent's engagement with the classroom population as a whole. Specifically, on two occasions Mr. Soderholm requested Respondent to lead the entire class; however, Respondent did not accept the invitation. Concerning the special education students, Mr. Soderholm observed Respondent making "minimal attempts to walk around and be in the classroom"; however, he opined that Respondent never truly engaged. Haronique Durham, an eight-grade teacher at Mandarin Lakes, perceived Respondent's role as an inclusion teacher and a co-teacher in her classroom. According to Ms. Durham, Respondent did not interact with the students, but rather, "usually walked back and forth in the back of the room pacing and he either looks up to the sky and covers his mouth and walks back and forth." According to Ms. Durham, Respondent never helped the students in her class and never taught a lesson. Ms. Durham acknowledged that special education students have an Individual Education Plan ("IEP"), which, among other things, sets forth specific goals for the individual student. Ira Gardner, a physical education teacher at Mandarin Lakes during the 2012-2013 school year, on more than one occasion observed children "hanging out of the third floor window" of a classroom. On one such occasion, upon entering the classroom, he observed that Respondent was the only teacher in the classroom, and admonished Respondent that "[y]ou got to look at everybody" and that "[t]hese kids are all over the place." Mr. Gardner, Assistant Principal Williams, Assistant Principal Lee, and Principal Fleites credibly testified that Respondent, on one or more occasions, appeared to be engaged in an audible conversation with himself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 31st day of January, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 31st day of January, 2014.
Findings Of Fact During the 1988/1989 school year, Shawanna Shaw was a student in the sixth grade at Madison Middle School. During the 1988/1989 school year Respondent was a student in the reading class of Ms. Willson. At the beginning of the school year Respondent's performance and conduct were acceptable. Shortly thereafter, however, Respondent began to demonstrate a severe disinterest in school. She would only complete about 10% of the homework assignments, would come to class without materials and otherwise unprepared, and refused to do work in class. Moreover, Respondent fell into a pattern of disruptive behavior which seriously interfered with the learning activities in the classroom. This behavior included yelling out in class, thereby breaking the silence required in a reading classroom, and showing open disrespect to her teacher by defying her authority and using abusive and foul language towards her. Respondent's behavior in Ms. Willson's class became so disruptive and unproductive that she was relegated to a separate table so as to separate her from other students. During these separations Respondent would sleep and did not benefit from any of the classroom activities. On other occasions, Respondent would defy her teacher's authority by simply leaving the room without permission. Ms. Willson attempted to improve Respondent's conduct in school by different methods, including a conference with the mother. Notwithstanding, there was no positive change in Respondent's behavior. As a result of Respondent's failure to make progress and depriving other students of making progress, she received a grade of "F3F," which constitutes a failing academic and conduct grade and the lowest rating for effort. Respondent was assigned to Ms. Ruddy, one of the school counselors, during the 1988/1989 school year. Because of the frequent conflicts that Respondent had with different teachers and the fact that she was not making progress Ms. Ruddy spent a disproportionate amount of time with her. Efforts by Ms. Ruddy to reactivate Respondent's interest in school were to no avail. Conferences with Respondent and her parents were ineffective. Respondent's skipping of classes became chronic; frequently Ms. Ruddy would find Respondent wandering the halls during normal class times. Further, Respondent frequently tried to engage other students in fighting both during classes and after school, and on one occasion Respondent pushed another student down the stairs. These latter acts can warrant expulsion. Like other schools within the Dade County School District, it is the practice at Madison Middle School for teachers and administrators to document troublesome student behavior. Written reports are made on Student Case Management Referral Forms, which are reserved to document serious behavior problems. Between September 8, 1988, and January 10, 1989, Respondent received eight Referral Forms from her teachers relating to disruptive and otherwise unacceptable conduct. Ms. Ruddy and the assistant principal, Barbara P. Bell, had numerous conferences with Respondent and her mother in an attempt to improve Respondent's behavior. Numerous techniques were considered, and in the process it was determined that the misbehavior of Respondent was not due to any learning disability, but was primarily the result of poor discipline. Madison Middle School is not geared to address the peculiar needs of students nor can it provide individual students with continuous special attention. For example, Ms. Ruddy, as a guidance counselor, has between 550 and 600 students assigned to her for counseling. The number of students assigned to her simply precludes any sort of in-depth, continuous, or special counseling for Respondent. By contrast, in an opportunity school there are far more counselors available to help develop students with individualized and continuous assistance. Moreover, at an opportunity school there is a full-time psychologist on staff, and the student to teacher ratio is less than half of what it is in a regular school program. As such, students can be provided with a much more structured and individualized program at an opportunity school. Both Ms. Ruddy and Ms. Bell are of the opinion that Respondent is simply not making any progress at Madison Middle School, and her disruptive behavior is preventing other students from benefiting from normal classroom activities. The more structured environment of an opportunity school could be of great benefit to Respondent and help her to resolve the discipline problems she is experiencing. Because of Respondent's poor grades, unacceptable conduct, and behavior which deprived other students of a learning experience, a child study team conference between teachers and an administrator was held at which the decision was reached to administratively assign Respondent to an opportunity school. At various times during the 1988/1989 school year Respondent's mother has requested that Respondent be tested for a learning disability and has refused consent for such testing. She has also requested that Respondent be transferred to the Opportunity School voluntarily and has refused to allow Respondent to be so transferred. During the course of the final hearing, Petitioner agreed that Respondent would be psychologically evaluated by Petitioner, resulting from the parent's request that such evaluation be performed. Although Respondent's Stanford Achievement Test scores are low to below average, it is the opinion of the school personnel having repeated contact with Respondent that her disruptive behavior and failure to do her work are not the result of a learning disability since she has been doing her work prior to October of 1988. They believe her conduct to be a result of lack of discipline. It is expected, however, that should the psychological evaluation indicate the possibility of a learning disability, the School Board of Dade County and Respondent's mother would permit and provide the appropriate testing to determine the presence of any learning disability in order to assist Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered assigning Respondent Shawanna Shaw to the Opportunity School Program at Jan Mann Opportunity School-North until such time as her performance reveals that she can be returned to the regular school program. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 18th day of July, 1989. COPIES FURNISHED: Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Frank A. Howard, Jr., Esquire Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, FL 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, FL 33134 Mrs. Alberta Shaw 2360 N.W. 90th Street Miami, FL 33147
The Issue The issues to be determined are whether Respondent violated section 1012.795(d) and (j), Florida Statutes (2011), or Florida Administrative Code Rule 6A-10.081(3)(a) and (e), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent is a teacher certified by the State of Florida, holding Florida Educator’s Certificate 958493, covering the areas of Elementary Education, Exceptional Student Education (ESE), and Autism Spectrum Disorders, valid through June 30, 2014. At all times material to the allegations in this case, Respondent was employed by the Bay County School District as an ESE teacher at Margaret K. Lewis Center (MKL Center). This is a second career for Respondent. She left a business and technology career to pursue a career in education, specifically working with students with special needs. Respondent obtained her Master’s degree and a special designation to work with special needs students. Respondent was motivated to pursue teaching special education students because she had an aunt with Down’s syndrome who had limited educational opportunities. Respondent taught at Oscar Patterson Elementary for the 2006-2007 school year, and then transferred to MKL Center beginning in the 2007-2008 school year. After Respondent received her state educational certification in autism spectrum disorders, she requested to be assigned to teach an ESE class beginning with the 2010-2011 school year. That year, she was voted as “Teacher of the Year” by her peers. The class to which Respondent was assigned was a challenging class. It was not unusual for students in this classroom to bite, kick, hit, pinch, and trip staff. During the 2010-2011 school year, the number of students was reduced from eight to four, and the number of paraprofessionals was increased from two to three. During the 2011-2012 school year, there were four students in her classroom: C.B., J.B., K.M., and D.C. One paraprofessional, Patricia Lewis, was assigned specifically to D.C. The other two paraprofessionals, Jennifer Shea Saulmon and Nancy Davis, worked with all of the children, and when able to, Patricia Lewis did as well. Ms. Davis, Ms. Saulmon, and Ms. Lewis have seven, fourteen and twenty-seven years of experience, respectively. C.B. had a severe mental disability with a limited ability to comprehend verbal communications and a limited ability to communicate. C.B.’s communication involved single words, sounds, and gestures. He could discern the speaker’s mood, but might not fully understand the content of what was said. For example, C.B. might not understand that someone was saying hello, but would understand that the speaker was friendly towards him. C.B. also had problematic behaviors including biting, pinching, scratching, and hitting. C.B. had an awkward gait and wore ankle orthotics (AFO’s), a type of plastic brace, over his shoe and lower leg to provide stability from the foot to the leg, and to assist in improving his ability to walk. C.B. was ten years old. J.B. was approximately 11 years old in January 2012, and was diagnosed with Autism Spectrum Disorder. He also had a limited ability to communicate using single words, sounds and utterances, and gestures. J.B. also used an iPad to communicate. Over time, someone working with J.B. would develop a greater ability to understand and communicate with him. J.B.’s difficult behaviors included spitting, hitting, kicking, and pinching. K.M. was 11 in January 2012. K.M. was diagnosed with Down’s syndrome, and had previously suffered a stroke which limited her use of one arm. She also had significant intellectual limitations. However, K.M.’s ability to communicate was greater than the other members of the class, and she could understand verbal communications. In addition, K.M. was more independent than her classmates, and was a risk for elopement from both the classroom and the campus. As stated by one of the paraprofessionals, K.M. “was a runner.” By all accounts, K.M.’s behaviors were consistently disruptive, and managing her in a classroom took a significant effort. D.C. was also 11 in January 2012. D.C. was diagnosed as autistic and engaged in repeated self-injurious behaviors. When upset, D.C. would repeatedly strike himself in the head and face, and he often wore a football helmet as a protective measure. D.C. was very strong, and attempts to prevent him from hurting himself could often result in staff members being hurt. There was testimony at hearing that his behavior plan addressed how many he times he was allowed to hit himself or how long he was allowed to hit himself without intervention. However, the behavior plan for D.C. was not in evidence. A portion of the classroom was designed specifically for D.C., with padded walls and a padded floor, in light of D.C.’s tendency to hit his head against hard surfaces as well. He had some beads that he played with that sometimes calmed him. At some point during the 2011-2012 school year, Respondent began to show signs that the stresses of her very challenging classroom were having an effect on her. After the Christmas break, her stress seemed to have intensified. Respondent was having trouble sleeping, suffered from high blood pressure and pain from injuries sustained in the classroom, and was experiencing some depression. Respondent began to “self- medicate” with alcohol at night. There was no credible evidence that Respondent ever drank during the day or was under the influence of alcohol during work hours. At the end of the school day on January 30, 2012, Ms. Lewis approached assistant principal Elizabeth Swedlund to voice some concerns about Respondent’s behavior in the classroom. Ms. Lewis related some events that had occurred in the classroom that day, as well as some general concerns regarding treatment of the students in the classroom. She voiced the following concerns: that Respondent took away D.C.’s beads and would allow him to hit himself for a period of time longer than allowed by his treatment plan; that she made statements to K.M. such as “I could kill you” or “go play in the street”; and that she hit C.B. with a closed hand and kicked him while working in “circle time.” On January 31, 2012, Ms. Swedlund notified her principal, Britt Smith, of the conversation with Ms. Lewis. She decided to speak with the other paraprofessionals in the classroom and after doing so, to report the information to the abuse registry. Principal Smith notified Sharon Michalik, the District’s Executive Director of Human Resources, of the issue with respect to Respondent. As a result, Mike Jones, Chief of Safety, initiated an investigation. Mike Jones visited the campus the following day. All three paraprofessionals were interviewed and asked to provide written statements. He took Respondent for a drug and urine test, which came back negative. On Friday, February 3, 2012, Respondent was notified to meet with Ms. Michalik and other administrators to review the allegations. After this meeting, Respondent was suspended with pay, and the School District planned to proceed with a recommendation for termination. However, instead the parties entered an agreement executed on March 30, 2012, through which Respondent would take a medical leave of absence and would only be allowed to return to a position with the School District if she was found fit for duty. If she returned, she would be required to submit to random drug and alcohol testing. On March 30, 2012, the Department of Children and Families issued a letter to Respondent stating that it found no indicators of physical injury and no indicators of bizarre punishment. On April 27, 2012, Respondent was evaluated by psychologist David J. Smith who opined that at that time, she was not fit for duty. She was re-evaluated on July 26, 2012, and cleared to return to work. At that time, she was assigned to a different school. One of the issues raised by Ms. Lewis was that Respondent permitted D.C. to hit himself more frequently than allowed by his behavior plan. The Administrative Complaint specifically charges that she allowed D.C. to hit himself repeatedly for up to ten minutes, while his behavior plan indicated that he should be allowed to hit himself up to three times. The behavior plan was not entered into evidence. The evidence was unclear as to what the plan actually required, and it was equally unclear exactly what Respondent was doing. For example, there was testimony that she would attempt to redirect him once he started hitting himself, but did not physically intervene for ten minutes. There was other testimony that there was never a time when he was allowed to simply hit himself with no one doing anything. Without being able to examine the behavior plan, and without being able to specify the exact incident or incidents at issue, it is not possible to determine whether Respondent was varying from the requirements of the behavior plan, or if any variation was significant. Ms. Davis reported to Ms. Swedlund that on or about Friday, January 27, 2012, J.B. was in time-out because of bad behaviors. While he was in time-out, he was sitting behind a rolling partition, and Respondent was holding the partition in place so that J.B. would have to remain in place. J.B. spat at Respondent, which is something he did often. Ms. Davis reported that while holding the partition Respondent spat back at him, an action that shocked Ms. Davis. Respondent denies ever spitting on J.B. She testified via deposition that J.B. was spitting while in time-out, and she was holding the barrier while talking to him. She responded to his behavior by saying “you do not spit.” Respondent testified that it was possible that some spittle may have fallen on J.B., but that she never intentionally spit on him. The only person who testified regarding the spitting was Ms. Davis. While she was a very credible witness, there was no testimony regarding how close she was to Ms. Henson or to J.B., or that J.B. reacted in any way. Neither of the other paraprofessionals in the room testified that they saw or heard about the incident, and it is implausible to think that such behavior would go without comment. It is conceivable that in saying, “you do not spit,” that spittle would result. Given the high burden of proof for this proceeding, the allegation has not been proven by clear and convincing evidence. As previously stated, K.M. presented a classroom management problem. She had a tendency to run around the classroom, take her clothes off, or run out of the classroom and sometimes out of the building. She also would tear up items in the classroom and could be very disruptive. Ms. Lewis felt that Respondent had a hard time getting past her dislike of the child. She had heard her say things like, “I could just kill you right now,” and “go ahead and go into the street.” While Ms. Lewis believed K.M. could understand such statements, she did not react to them, except perhaps to run faster. Ms. Lewis did not believe that Ms. Henson was serious when she made the statements, but more likely made them when frustrated by K.M.’s behavior. Respondent did not recall ever making such statements. Neither Ms. Lewis nor the Administrative Complaint identified exactly when Respondent was to have made these statements, although Ms. Lewis specified that they were statements made at different times. While Ms. Lewis testified that she believed Respondent did not like K.M., it is just as likely that she did not dislike the child, but was extremely frustrated by her behavior. All of the paraprofessionals testified that Respondent truly loved the children she worked with, but that she was frustrated and overwhelmed in the very challenging classroom in which she taught. While the evidence was clear and convincing that Respondent made the statements, even Ms. Lewis testified that she did not believe Respondent was serious when she made them. Regardless, the statements were not appropriate statements to make to a child, especially a child with limited intellectual abilities that might not be able to discern whether Respondent was serious. They are, by their nature, disparaging statements. Finally, the incident which caused Ms. Lewis to approach Ms. Swedlund about Respondent involved Respondent’s reactions to C.B. C.B. liked to work on the computer. He would play computer games, such as Dora the Explorer, and was rewarded with computer time for good behavior and finishing all of his assigned work. On Friday, January 27, 2012, C.B. had a rough day, and had been hitting, pinching, and kicking staff. Respondent had spoken with his mother about his behaviors to see if there had been any changes at home that might have contributed to his aggressive behavior. Respondent had told C.B.’s mother that they would have to try some different methods to get C.B. to comply, and that his playing on the computer all day would have to stop. The paraprofessionals testified that on Monday, January 30, 2012, Respondent seemed agitated all day. One said she seemed to carry the frustrations of Friday into Monday. That morning Jennifer Shea Saulmon went to the cafeteria to pick up C.B., who had walked from the parent pickup area without incident, and seemed to be in a good mood. When they reached the classroom, C.B. went straight to the computers. Respondent immediately told him that he could not have computer time. Ms. Saulmon was upset by this, because C.B. had not misbehaved that morning. She questioned Ms. Henson’s decision, and Respondent responded that he could not play on the computer all the time. He then completed his morning work without any disruption, and then walked over to the computers. Ms. Saulmon told him he could not play on the computer at that time. At about 9:15 a.m., the class began “circle time.” During this time, the students sit on the outside of a u-shaped table while Respondent sits on the inside of the “u.” C.B. did not like circle time. On this particular day, he was sitting at the end of the u-shaped table, to Respondent’s left. He began, as he often did, to hit and bite. According to Ms. Saulmon, this behavior usually subsides after about five minutes. This day, however, it did not. C.B. continued to pinch and hit Respondent. In response, Respondent put her arm up with a closed hand (so that the child could not pull and bend back a finger) in a blocking motion, as the teachers and paraprofessionals had been taught to do in order to protect themselves. She said out loud, “I’m blocking, I’m blocking.” However, rather than simply holding her arm up to block against any blows, she would swing her arm toward him to stop the blow, and in doing so, made contact with his arm. Although to Ms. Davis it looked like Respondent was hitting him, she never thought Respondent was trying to hurt C.B. Each time Respondent blocked C.B., he pinched her again, and she blocked him again, which made him angrier. He then started kicking her, and Ms. Davis and Ms. Saulmon believed she kicked him back. However, neither paraprofessional could say that Respondent actually made contact with C.B. They were pretty certain that C.B. was kicking Respondent, and they could see movement toward him by Respondent, and C.B. responded angrily by squealing as he usually did when frustrated or angry. It is just as likely that Respondent was using her leg or foot to try to block C.B.’s kicks, as she stated in her deposition, and that C.B. was angry because she was blocking him. Nonetheless, Respondent’s clear agitation in the classroom that day led to Ms. Lewis’ conversation with Ms. Swedlund about Respondent’s behavior. While all of the paraprofessionals stated concerns about Ms. Henson’s ability to handle that particular class, all were very supportive of her continuing to teach in the special education area. All three seemed to think that the environment of that particular class, which by any measure would be extremely challenging, is one that overwhelmed Respondent, and that she had been in that setting too long. When Respondent returned to work at the beginning of the 2012-2013 school year, she was transferred to Beach Elementary School. The principal at the new school is Glenda Nouskhajian. Ms. Nouskhajian considers Respondent to be one of her lead teachers in the ESE department, and has no performance- related concerns about her. The only issue Respondent has had since coming to Beach Elementary was a minor paper-work issue related to transferring schools within the district. Respondent is not working in a stand-alone classroom like she was before. She is what Ms. Nouskhajian referred to as a “push-in,” meaning that she goes into other teachers’ classrooms and works with students in small groups in an inclusion setting. She works with the lowest quartile of students, and helps with all of these students’ interventions. Ms. Nouskhajian testified that the students with whom Respondent works are making “great strides,” and Respondent is an educator she would “absolutely” seek to retain. Ms. Nouskhajian knew that there was an issue at Respondent’s prior school, but did not investigate the details. She stated that Respondent had been placed at Beach Elementary by Sharon Michalik, and “I knew that if she was a danger to students, Sharon Michalik would not have placed her at my school . . . . That she went through the counseling and everything she had to do so when she came to my school it was a total fresh start.” Since coming to Beach Elementary, Respondent’s evaluation for the 2012-2013 school year was overall effective, with all categories rated as effective or highly effective. In sum, there is clear and convincing evidence that Respondent made inappropriate remarks to student K.M. There is not clear and convincing evidence that Respondent spat on J.B., or that she hit or kicked C.B. Likewise, there is not clear and convincing evidence that she varied significantly from D.C.’s behavioral plan or acted in a way that allowed him to hurt himself. There is clear and convincing evidence that Respondent was frustrated and overwhelmed in the autistic classroom and, despite having asked for the assignment, had been teaching in that environment for too long to be effective, given the violent tendencies of the children in that setting. There is clear and convincing evidence that she took a leave of absence in lieu of termination and could only return to the classroom after an evaluation found her fit for duty. A change of setting was needed and has served to re-invigorate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated rule 6A- 10.081(3)(e). It is further recommended that Respondent be reprimanded and placed on probation for a period of two years, subject to such terms and conditions as the Commission in its discretion may impose. DONE AND ENTERED this 24th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 March, 2014. COPIES FURNISHED: David Holder, Esquire J. David Holder PA 387 Lakeside Drive Defuniak Springs, Florida 32435 Emily Moore, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 224 Tallahassee, Florida 32399 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399
The Issue The issue is whether Petitioner properly determined that Respondent should be discharged from employment as a tenured teacher based on his professional incompetence.
Findings Of Fact At all times pertinent to this case, Petitioner employed Respondent as a certified tenured teacher. Respondent has 28 years of experience teaching mathematics. Michael Kemp became principal at Englewood High School (EHS) during the 2002/2003 school year. Respondent was a mathematics teacher at EHS for the 2002/2003 and 2003/2004 school terms. EHS has approximately 2,050 students. It is unique in that it serves as Petitioner's secondary center for a program known as "English for Speakers of Other Languages (ESOL)." Approximately 80 percent of the students at EHS score below a Level 3 (below standard) on the Florida Comprehensive Assessment Test (FCAT). In the 2002/2003 school year, EHS implemented a standards-based curriculum for the first time. EHS teachers, including Respondent, received training relative to new student performance standards. The teachers also received training in the use of a new mini-lesson plan format for 90-minute blocks of instruction in content areas. During the 2002/2003 academic year, Petitioner implemented a new college preparatory mathematics (CPM) curriculum and a new reading strategy for all content areas. Respondent, along with other EHS teachers, received training in the new math curriculum and reading strategies. Respondent did not transition well to the new way of teaching. He did not adjust his teaching style to accommodate a "block" schedule, which required 90-minutes of instruction for each class period. Mr. Kemp evaluated Respondent for the 2002/2003 school year. Mr. Kemp determined that Respondent's ability to plan and deliver instruction, Competency A on the annual evaluation form and the "Classroom Observation Instrument" (COI), was unsatisfactory. However, Mr. Kemp concluded that Respondent's overall performance for the 2002/2003 school year was satisfactory. For the 2003/2004 school year, EHS initiated a sheltered academic content teaching model. As a result of the new model, many ESOL students exited the core academic program and attended special ESOL classes with designated teachers in academic areas such as language arts, mathematics, and social studies. For the 2003/2004 school year, Respondent was not a sheltered content teacher. Therefore, Respondent's classes contained some ESOL students but not as great a percentage as in 2002/2003. A high student-failure rate was common at EHS for the 2003/2004 school year. That year, approximately two-thirds of Respondent's students previously had failed their required math classes and were repeating the courses. Parental complaints against teachers are normal. The complaints are not always valid. However, when the 2003/2004 school year commenced, Mr. Kemp became concerned about the number of parents who wanted their children removed from Respondent's classes. Some of the parents made the requests as soon as their children were assigned to Respondent's classes. Other parents requested reassignment of their children to other math classes as the year progressed. On November 7, 2003, a student in one of Respondent's classes became very disruptive. Respondent attempted to get the student to settle down. When his efforts were unsuccessful, Respondent directed a verbal obscenity to the student in front of other students while class was in session. Specifically, Respondent told the student to "get the f--- out" of the classroom. On November 14, 2003, Mr. Kemp had a conversation with Respondent about his unsatisfactory classroom performance. In a memorandum dated November 17, 2003, Mr. Kemp advised Respondent that a success plan would be developed and a support team identified to assist him. On December 3, 2003, Mr. Kemp observed Respondent teaching a math class. Mr. Kemp determined that Respondent did not demonstrate satisfactory teaching behaviors. Regarding Respondent's classroom management, Mr. Kemp's observations included the following: (a) Respondent did not control the classroom; (b) Students were not on task during the warm-up activity; (c) Students engaged in conversations, which were not related to the task at hand; (d) There were no apparent expectations for classroom behavior; (e) Respondent tolerated disrespectful talk from students; and (f) Respondent did not control classroom dialogue and discussions. Regarding Respondent's instructional delivery, Mr. Kemp's observations included, but are not limited to, the following: (a) Respondent did not connect the purpose of the lesson with its content; (b) Respondent lectured from the front of the class and did not vary his instructional delivery; (c) Many students were not on task; (d) Respondent continued the lesson despite statements of frustration and lack of understanding from students; (e) Respondent demonstrated content knowledge and mastery of material, but he did not successfully transfer content to students or communicate with them; (f) The lesson was not motivating; (g) Students were not engaged and ignored the lecture; (h) Except for two students who answered questions, the class was either lost or not engaged; (i) Some students requested other students to explain or teach them an assigned task; (j) Respondent circulated among the students but he had no organization as to what was being checked; and (k) Respondent was unaware that students were working on other assignments unrelated to the class work. In a memorandum dated December 4, 2003, Mr. Kemp notified Respondent that a conference had been scheduled for December 10, 2003. The purpose of the meeting was to initiate Respondent's success plan. On December 8, 2003, Mr. Kemp observed Respondent teach another math class. Mr. Kemp concluded that Respondent did not demonstrate satisfactory teaching behaviors. Mr. Kemp's observations included the following: (a) Respondent needed assistance with appropriate lesson planning for a block schedule; (b) Respondent relied too much on a lecture format with no connection between the content of the lesson and its purpose; (c) Respondent had adequate content knowledge but he was ineffective in transferring that knowledge to the students; (d) Respondent had difficulty keeping the students engaged and on task; and (e) Respondent had little control over classroom dialogue. On December 10, 2003, Respondent met with his success team. After the meeting, Respondent was given an opportunity to provide additional strategies and suggestions for improvement to the success plan. Respondent did not take advantage of this opportunity. Respondent's 2003/2004 success plan contained specific goals, objectives and tasks in the following areas: (a) Plans and delivers effective instruction; (b) Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (c) Evaluates the instructional needs of students; (d) Communicates with parents; and (e) Promotes student growth and performance. The success plan identified certain members of the success team to work with Respondent on each area of professional development. The plan provided for weekly meetings with the success team members between January 5, 2004, and March 30, 2004. The success plan required Respondent to attend professional development cluster meetings for off-site continuing education in the following subject areas: (a) Standards Based Education; (b) Rituals and Routines; and (c) Effective Communication. The success plan provided opportunity for on-site continuing education and professional development. For example, the plan required Respondent to read and summarize certain professional literature such as the following: (a) Two math chapters in Best Practices; and (b) Modules related discipline and communication in CHAMPS Foundation. Additionally, Respondent's plan required him to view a video tape related to effective interpersonal communications with students and explain in writing how he planned to implement communication strategies in his classes. Most important, the plan required Respondent to observe his math colleagues twice a month. The success plan required Respondent to develop weekly lesson plans. These lesson plans had to include mini-lesson plans for each class at least once in each daily lesson. The mini-lesson plans included FCAT warm-ups, opening, practice, and closure. The success plan required other on-going activities including, but not limited to, the following: (a) Preparing a written script and implementing appropriate questioning strategies using Bloom's Taxonomy; (b) Preparing a written script of appropriate questions for use when monitoring and probing for solutions with cooperative groups; (c) Preparing a written summary on learning modalities; (d) Preparing a written list of strategies to meet all classroom exceptionalities and learning styles; (e) providing students with written individual corrective feedback; (f) Posting dates for remediation, retesting, or revision of work; (g) Establishing and applying published classroom routines; (h) Posting classroom rules; (i) Creating and maintaining an Absentee Assignment Notebook; (j) Publishing and enforcing a procedure for recording and reporting tardies; (k) Maintaining a notebook of handouts for student access; (l) Publishing and implementing a routine for lesson closure and class dismissal; (m) Maintaining student data records in the "Success by Design" notebook; (n) Communicating with parents about unsatisfactory student performance and course recovery opportunities, using two methods and keeping a log and copies of any written communication; and (o) Creating a daily journal of professional reflections relative to improving student rapport. The success team members observed Respondent's classes and reviewed his written assignments to determine whether he was meeting the requirements of his success plan. The team members provided Respondent with verbal and written feedback about his progress or lack thereof. The success team met as a group on February 10, 2004. On March 10, 2004, Mr. Kemp made a final observation of Respondent's teaching performance. Mr. Kemp concluded that Respondent was attempting to establish a rapport with his students. However, Respondent's performance was inadequate in the following ways: (a) He needed to implement strategies to engage the students; (b) He needed assistance with lesson plans; and (c) He needed additional strategies for classroom management. Mr. Kemp met with Respondent on March 12, 2004. At the meeting, Mr. Kemp advised Respondent that he had not successfully completed the success plan. The annual evaluation that Mr. Kemp and Respondent signed at the meeting indicates that Respondent's performance was unsatisfactory in the following areas: (a) Competency A--plans and delivers effective instruction; (b) Competency C--Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; and (c) Competency G--promotes student growth and performance. According to the evaluation, Respondent's overall performance for the 2003/2004 school year was unsatisfactory. As requested by Respondent, Petitioner assigned Respondent to a teaching position at La Villa School of Arts (La Villa) for the 2004/2005 school term. Connie Skinner was La Villa's principal and Jeffery Hutchman was head of the math department at La Villa. Mr. Hutchman made several attempts to contact Respondent during the summer before the 2004/2005 school year commenced. Mr. Hutchman intended to invite Respondent to a middle-school mathematics workshop. Respondent never received Mr. Hutchman's messages and therefore did not attend the workshop. At La Villa, Respondent did not have an assigned classroom. Instead, Respondent was a "traveling" teacher who changed classrooms each period. On September 3, 2004, Ms. Skinner observed Respondent teach a math class for the first time. Ms. Skinner had some positive and negative comments about her observations. Among other things, Ms. Skinner concluded that Respondent circulated appropriately among the students, quickly stopped disrespect by one student, and had good questions from the class at the end of the lesson. She made the following suggestions: (a) Respondent needed to speed up the mini-lesson; (b) Respondent needed to set a time limit for student work to reduce the number of students who were not engaged or slow to start; and (c) Respondent needed to get students to the board. EHS sent La Villa a copy of Respondent's 2003/2004 success plan. On September 3, 2004, the success team at La Villa decided to use a modified version of the 2003/2004 success plan until Ms. Skinner and the La Villa success team had an opportunity to observe Respondent and develop a new success plan for the 2004/2005 school year. On October 11, 2004, Ms. Skinner made an unplanned observation in Respondent's class. The purpose of the visit was not to evaluate Respondent, but to gain additional information for the development of the new success plan. During the visit, Ms. Skinner noted, among other things, that Respondent's voice registered disgust with students for not using notes. On October 20, 2004, Ms. Skinner observed Respondent teach a math class, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner noted the following: (a) There was a great deal of confusion in a group assignment; (b) Respondent did not gain student attention at the start of the lesson; and (c) Respondent made statements showing his disdain for students and his lack of class discipline. Ms. Skinner concluded that Respondent's performance was unsatisfactory. On October 21, 2004, the success team at La Villa presented Respondent with a new success plan. The plan included specific goals and objectives to effect improvement in Respondent's ability to plan and deliver instruction, to demonstrate effective classroom management skills, to show sensitivity to student needs, to demonstrate abilities to evaluate students' instructional needs, to communicate with parents, and to promote student growth and performance. The 2004/2005 success plan required Respondent to attend training classes in "Connected Math." It also required him to attend workshops in instructional strategies and classroom management as well as other on-site and off-site continuing education programs. The 2004/2005 success plan specified that success team members would assist Respondent by explaining and demonstrating classroom strategies. Additionally, the success team members were required to observe Respondent in the classroom and provide him with feedback. Ms. Skinner observed Respondent on November 17, 2004. Among other comments, Ms. Skinner noted that Respondent's students were either not engaged or asked questions unrelated to the subject of the lesson. Ms. Skinner also concluded as follows: (a) Respondent's lesson did not include a mini lesson; (b) The content of the students' notebooks were poorly arranged and inconsistent; and (c) The students' homework folders were mostly empty and contained no teacher commentary. Ms. Skinner observed Respondent on November 24, 2004, using the COI to evaluate Respondent's teaching behaviors. Ms. Skinner determined that Respondent told the class to "shhhh" over 30 times. For this and other reasons, Ms. Skinner concluded that Respondent had not demonstrated satisfactory performance. On January 20, 2005, Ms. Skinner used the COI and the Professional Behaviors Instrument (PBI) to evaluate Respondent's classroom performance. These evaluations indicated that Respondent had improved in some areas such as clarity of instruction and interaction with students, resulting in a more engaged class. However, his overall performance was unsatisfactory. On March 10, 2005, Ms. Skinner used the COI to evaluate Respondent's teaching behaviors. Ms. Skinner observed the following: (a) Respondent presented material that was hard to read; (b) Respondent handled questions poorly; (c) The pace of the lesson seemed very slow; (d) Respondent failed to praise a student for a correct answer; and (e) Respondent's tone of voice carries disdain for students. Ms. Skinner concluded that Respondent's teaching behaviors were not satisfactory. On March 11, 2005, Ms. Skinner completed Respondent's annual evaluation. She concluded that his performance was unsatisfactory in the following areas: (a) Competency A, Plans and delivers effective instruction; (b) Competency D, Shows sensitivity to student needs by maintaining a positive school environment; (c) Competency E, Evaluates instructional needs of students; and (d) Promotes student growth and performance. Respondent's overall evaluation indicated that his professional growth was unsatisfactory. As to Compentency A, persuasive evidence indicates that Respondent's delivery was not clear and explicit. His students did not understand the lesson objectives. His written communications included misspelling and typos. As to Competency D, the record shows that Respondent failed to provide his students with positive reinforcement. Instead, his tone of voice carried disdain when interacting with his students. As to Competency E, Respondent had an unusually high failure rate. This shows that Respondent's instruction did not meet the needs of his students. As to Competency G, Respondent did not provide for individual student needs during his classes. On March 15, 2005, Ms. Skinner and Respondent discussed his 2004/2005 success plan. Ms. Skinner advised Respondent that he had not successfully completed the plan. After each observation/evaluation, Ms. Skinner discussed her findings with Respondent. She advised Respondent of strategies for improving his teaching behaviors. While there was some improvement in the middle of the 2004/2005 school term, by the end of the year there was a reversion in Respondent's professional growth. Ms. Skinner stated that "all of the strategies for standards-based education that we had worked on and helped him to understand, we thought went by the wayside." Regarding Competency A and Competency G, Respondent was unable to improve, despite the assistance of his success teams and the specific in-service training they provided. Respondent's was unable to maintain a satisfactory level of performance for Competency D and Competency E. He made improvement in only one area, Competency C. Overall, Respondent's professional growth was unsatisfactory for consecutive annual evaluations separated by a year of in-service training to correct his deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order, terminating the Respondent's employment as a tenured teacher. DONE AND ENTERED this 18th day of November, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th of November, 2005. COPIES FURNISHED: Adres Rojas, Esquire City of Jacksonville City Hall, St. James Building 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Honorable John Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph J. Wise, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207
