The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the application of policy and practice by: establishing routines and procedures for the use of materials and the physical movement of students. formulating appropriate standards for student behavior identifying inappropriate behavior and employing appropriate techniques for correction. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 28th day of December, 2000.
The Issue The issue for consideration in this matter is whether Respondent should be dismissed from employment with the Polk County School Board because of the matters alleged in the letter of intent prepared by the Superintendent of Schools.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for providing public primary, secondary and adult education in Polk County, Florida, and operated Haines City High School, (HCHS), in Haines City. Respondent had been employed at HCHS for eight years, and in the last two years prior to the incidents herein taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. DCT students are allowed to leave campus before the end of the school day to work at jobs in the local area. However, Respondent allowed some students to leave school during the morning hours for the purpose of getting breakfast and, coincidentally, to bring items back to school for her to eat. There is also allegation that Respondent would solicit students to run personal errands for her during school hours but would not give them a pass to allow them to lawfully leave the campus. Allegedly, she advised them that they were on their own and she would deny responsibility or knowledge if they were caught. Taken together, the evidence establishes that Respondent did allow students to leave class on personal business and did not give them passes to be off campus. It also appears that she solicited them to pick up items for her while they were away, but not that she solicited students to leave class to run errands off campus for her. Even so, her actions are in violation of the Board policy regarding student absence from campus, a policy about which Respondent had been briefed. In addition, some time during the Autumn of 1994, Respondent overheard a student on the school's football team, Bradford Parton, discussing with his girlfriend the fact he was having cramps. Respondent advised him he should take potassium and on at least one occasion, during a class session, gave Parton a pill which, she said, would give him energy and take away his cramps. She believed the pill was the functional equivalent of one banana. Respondent was aware that it was a violation of Board policy for anyone other than the school nurse to administer any form of pill or medication to a student. When the Principal learned that Respondent had given Parton the pill, he directed an investigation into the matter. On November 17, 1994, after he had heard that Respondent was making comments in class to the effect that the students were getting her in trouble with the administration, the Principal gave her verbal instructions not to discuss these matters with the students and to limit her conversations with them to matters related to class work. His comment to her included, "Just teach the class. Just don't bring yourself down to their level." The following day, on November 18, 1994, after receiving word that Respondent had again spoken to Parton after he had warned her not to do so, the Principal reduced his prior comments to writing and again instructed her not to discuss the matter with any students, warning her that he considered her doing so a matter of insubordination which, if repeated, would result in severe disciplinary action. There is some indication Respondent, in early December, 1994, advised several students after the warning she was going to have them removed from her class She subsequently advised the school's guidance counselor that several of the students involved should be removed from her class because they appeared to be "unhappy" in it. The students denied being unhappy in class and urgently resisted being removed because they needed the credit to graduate. Respondent's comments to the students constituted insubordination, and her action in urging removal of the students was considered by the administration to be an attempt at retaliation against them because of their allegations made against her. There is also indication that while the investigation into the allegations against her was under way, Respondent spoke with Ms. Denmark, another teacher, who was in the room when Respondent gave the pill to Mr. Parton, in an effort to get her to change her statement. School Board officials consider Respondent's blatant violation of school rules and policies by allowing students to leave campus without a pass and by improperly administering a pill to a student combine to severely impair her effectiveness as a teacher. Under the circumstances established here, this appears to be the case. Prior to the initiation of this action, Respondent had received a verbal warning regarding drinking in front of students at a conference and regarding making untoward comments about Blacks. Her personnel record, commencing with the teacher evaluation of her performance in the 1988-1989 school year, reflects positive comments and no substantial criticism. However, in July, 1994, the Superintendent advised Respondent of his intention to suspend her without pay for five days for making improper comments of a sexual nature toward students and for allowing students to grade papers, to average grades and to have access to her grade book. Respondent requested hearing on this proposed action. That hearing was held consolidated with the instant hearing and no final action has been taken by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova's, suspension without pay pending hearing be sustained and that she be dismissed from employment as a teacher with the Polk County School Board because of misconduct in office and gross insubordination as described herein. RECOMMENDED this 3rd day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2599 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 4. Accepted and incorporated herein. - 9. Accepted and incorporated herein. Accepted in so far as Respondent allowed students to leave campus and periodically suggested those who did run errands for her. - 13. Accepted and incorporated herein. 14. Accepted and incorporated herein. FOR THE RESPONDENT: & 2. Accepted and incorporated herein with the understanding that the term, "no further details regarding the allegations were provided" refers to the charging letter, and that Respondent was provided with specific allegations of misconduct prior to hearing. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 8. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence rejected. See Partain's December 2, 1994 letter to Chapman. Accepted and incorporated herein. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U. S. Highway 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
Findings Of Fact Annie Jackson, currently Principal of Golden Glades Elementary, also served in that capacity during Elijah McCray's 6th grade experience there during the regular 1984-1985 school year. On December 10, 1984, Mrs. Jackson personally removed Elijah from the lunch room for shooting paper at other students. He was reprimanded after a conference and sent to an alternative eating place for a month. On March 5, 1985 the classroom teacher referred Elijah to Mrs. Jackson for disruptive behavior, running around, not working and splashing water. He was removed from class and received a conference with Mrs. Jackson. Mrs. Jackson called the parents the next day and reported the situation. On March 27, 1985 he was referred to Mrs. Jackson for laughing at his teacher and being defiant. On March 28, 1985 he was assigned 3 days outside detention by Mrs. Jackson because he had refused to serve assigned detention. On April 2, 1985, which was the day Elijah was due to return, Mrs. Jackson wrote his parents because he had again been referred to the office and defied the authority of the teacher referring him by not carrying the referral to Mrs. Jackson's office. He was referred to the school counselor by Mrs. Jackson. There was a subsequent 5 day suspension for disruptive behavior scheduled to begin on April 15, 1985. At 5:00 P.M. on that day, Mrs. Jackson personally conducted a teacher/parent/ student/administrator conference to discuss the April 15, 1985/ suspension. Present in place of the parents were Mr. and Mrs. Taylor, Elijah's grandparents. The teacher made known to the grandparents that she did not want Elijah back in her class because he would throw items and deny it and frequently disrupt the class by spitting in the classroom or by leaving the classroom to spit. The grandparents made known to the teacher, and to Mrs. Jackson that a sinus condition of Elijah's required him to spit frequently and Mrs. Jackson apparently engineered some rapport between the teacher and Elijah upon this information so that the planned 5 days suspension was rescinded by Mrs. Jackson. Mrs. Taylor testified that she was present at this meeting but felt she had not participated because she had left most of the talking to Mr. Taylor and Mrs. Jackson, but upon Mrs. Jackson's and Mrs. Taylor's testimony together it is specifically found that this parent contact did occur. On April 17, 1985, Mrs. Jackson referred Elijah to the school counselor because of a report from his classroom teacher that Elijah had said he would "swing his old gun" at her. While this language by the teacher is technically hearsay outside the admission exception, information on the report was recorded contemporaneously by Mrs. Jackson in the school records and regardless of what was actually said to the teacher, Mrs. Jackson personally observed the distraught behavior of the teacher in reaction to whatever threat had been made by Elijah. Mrs. Jackson called school security as a result. The investigation of the incident by Mrs. Jackson and the security investigator revealed that the teacher had been told by other students that Elijah had shot a relative of theirs but that he had in fact never done so. Elijah was warned that it is serious to make threats to teachers. On April 22, 1985 Mrs. Jackson received a formal written request from the classroom teacher requesting Elijah's removal from her class. Much of Mrs. Jackson's testimony suggests that the persistent disruptive behavior was that of the classroom teacher who referred Elijah for what she perceived as threats. This teacher was not present to testify. Elijah was returned to class by Mrs. Jackson over the teacher's objections with a final warning concerning making threats. A parent/teacher/student/ administrator conference was held to apprise the parents that this was a last chance. It may be that Mrs. Taylor was not present for this conference, but Mrs. Jackson indicates at least one adult was present on behalf of the child. On April 25, 1985, Elijah was returned to class. On April 30, 1985, Mrs. Jackson requested Officer Harris of Operation Pro Volunteer Listener to confer with Elijah about the seriousness of making threats. On May 1, 1985, Mrs. Jackson investigated a report that Elijah had threatened two girls (Mirland Joseph and Lesley Compton) in his class with a knife. The girls gave statements which Mrs. Jackson synopsized as stating that they thought they had been threatened with a knife by Elijah. The statements are not signed. The incident as reported in the statements composed by the principal are by themselves hearsay and that hearsay is not confirmed or corroborated by a statement made by Elijah directly to Mrs. Jackson that he had showed the girls the point of a nail file attached to a man's pocket toenail clippers and was "just joking with it." Mrs. Jackson received a broken pair of blunt toenail clippers from Elijah at the time of this admission and a xerox copy of the nailclippers was admitted in evidence as a true and correct copy of the implement. Because of the presence of the nailclippers, which Mrs. Jackson characterized as a "pointed object", Mrs. Jackson initiated transfer of Elijah to an alternative education program. She felt this was a lesser alternative to expulsion. Expulsion would otherwise be required by School Board policy in the presence of a "weapon." Mrs. Taylor testified that she had heard one of the girls who had given statements to Mrs. Jackson or perhaps a third girl named "Alexandra" say they had made up the May 1, 1985 incident. Mrs. Taylor stated Elijah and his sister had told her the night before the May 1, 1985 incident that the two girls or Elizabeth Carpenter was going to "start a problem for him the next day" or "going to fight him" the next day. There is no record evidence of failing grades, truancies, or unexcused absences for Elijah.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Elijah McCray to the appropriate grade level in a regular school program with a different classroom teacher than previously assigned. DONE and ORDERED this 30th day of September, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Jackie Gabe, Esquire Law Offices McCrary, Valentine & Mays P.A. 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 Mrs. Sylvia Taylor 2971 N. W. 165 Street Opa Locka, Florida 33054 Madelyn P. Schere, Esquire 1450 N. E. Second Avenue Miami, Florida Ms. Maeva Hipps School Board Clerk 1450 N. E. 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
Findings Of Fact Respondent, Gloria E. Walker, holds Teaching Certificate No. 294140, issued by the Department of Education, State of Florida. Respondent is certified to teach in the area of music education. Respondent has been employed as a Music Teacher by Petitioner, School Board of Dade County since 1970. From 1973 until 1986, Respondent taught music at Dunbar Elementary School in the Dade County School District. During the 1970-71 through 1977-78 school years, Respondent received either unacceptable or marginally acceptable scores for five of the seven years on her annual evaluations. (Petitioner's Exhibits 29). During the 1973-79 school year, the School Board altered its evaluations System for instructional Personnel. During the 78-79 through 83-84 school years, Respondent's annual evaluations were rated as acceptable. However, during the school years 1981- 82 through 83-84, school and district Personnel made comments concerning Respondent's need to improve her performance and development in certain areas. (TR 298). Commencing with the 1973 school year, Respondent received assistance from Charles Buckwalter, music specialist for elementary schools for the Dade County School District. Respondent was initially contacted by Mr. Buckwalter that year because of concerns the school's Principal expressed regarding Respondent's lack of classroom management. During that year, Mr. Buckwalter visited and provided assistance to Respondent approximately seven (7) times. Mr. Buckwalter's assistance to Respondent continued during the following three (3) years. During the 1981-82 school year, Mr. Buckwalter assisted Respondent on more than four occasions during which time he attempted to demonstrate lessons concerning management techniques and the use of new materials; objectives of instruction and on January 26, 1982, Buckwalter, along with Dr. Howard Doolin supervisor of music for Dade County, visited Respondent so that Dr. Doolin could observe Buckwalter's assistance to Respondent. On April 26, 1982, Respondent and Mr. Buckwalter met for approximately three and one half hours. Buckwalter visited several of Respondent classes and demonstrated the use of certain new materials. As a part of that visit, he observed Respondent's teaching and noted that Respondent abandoned the new materials and returned to teaching the old curriculum. On November 11, 1982, Mr. Buckwalter spent approximately three hours with Respondent in which time he visited two classes and had a conference with Respondent concerning the new curriculum for level 1 students. On November 18, 1982, Mr. Buckwalter made a follow-up visit concerning Respondent's lesson plans and objectives. Additionally, he demonstrated a lesson to one of Respondent's classes. On or about November 29, 1982, Respondent was formally observed by assistant principal, H. Elizabeth Tynes. Ms. Tynes has a wealth of experience lasting more than thirty years in both Hillsborough and Dade Counties. Respondent was rated unacceptable in the areas of classroom management, teacher/student relationship and in a subcategory of assessment techniques. (Petitioner's Exhibit 7). Respondent was rated unacceptable in the area of classroom management based on a large number of disruptive students in her music class and Respondent's inability to control the students' behavior through either verbal or nonverbal strategies. Respondent was rated unsatisfactory in the area of teacher/student relationship based on her failure to demonstrate consistency as concerns student behavior, failing to praise good behavior and reprimand students for disruptive conduct. On another occasion, assistant principal Tynes listened to a musical program Respondent's students were giving over the intercom system. Ms. Tynes rated the program a "total disaster". Ms. Tynes and the principal were "ashamed" of what they heard from Respondent's music class. Respondent demonstrated skills preparation for the program as observed by Ms. Tynes. On May 19, 1983, Respondent was formally observed in the classroom by Katherine Dinkin, who was then principal of Dunbar Elementary School. Following the observation, Respondent was evaluated unacceptable in areas of classroom management, teacher/student relationship, and techniques of instruction. (Petitioner's Exhibit 17). Principal Dinkins observed that Respondent's students were not on task, the classroom was chaotic and the students only responded to directives of the Principal, as a Person of authority. Respondent was rated unacceptable in techniques of instructions based on Ms. Dinkin's observation that students were being taught at levels beyond their ability; class openings and closings were not done appropriately and Respondent failed to develop a plan for the individual needs, interests and abilities of students. Respondent was rated unacceptable in the category of teacher/student relationships based on her failure to demonstrate warmth toward the students and her inability to command respect. During this period in 1983, principal Dinkins prescribed help for Respondent as concerns observing and working with other teachers for guidance. On April 12, 1984, Respondent was again formally observed by principal Dinkins and rated unacceptable in classroom management and techniques of instructions. (Petitioner's Exhibit 21). Respondent was rated unacceptable in the area of classroom management based on her demonstrated inability to keep students on task or to develop strategies to control their behavior. Respondent was rated unacceptable in the area of techniques of instructions based on an inadequately prepared lesson plan and an inability to deliver the instructional components to students. Principal Dinkins observed that the material Respondent attempted to teach was too complicated for the students and she failed to Properly sequence her instructions. Principal Dinkins, who was tendered and received as an expert in the areas of teacher observation and assessment, was unable to observe any continuum of improvement by Respondent over the extended period of Principal Dinkins' supervision. Principal Dinkins opined that Respondent deprived her students of the minimal educational experience in music. During the 1983-84 school year, Respondent again received help from Mr. Buckwalter. As part of this help, Mr. Buckwalter organized small study groups in order to improve instructions throughout the music education department. These groups met on September 28, October 19, November 9 and 30, 1983. Respondent was asked to become part of the study group. The study group was Particularly concerned with focusing on the scope and sequence of curriculum, students' achievement and implementation of certain aspects of the curriculum, particularly as concern level 1 and 2 students. On or about August 30, 1983, Mr. Buckwalter spent the day with Respondent and a new music teacher, Ronald Gold. On or about September 27, 1983, Mr. Buckwalter visited Respondent for approximately 3 and 1/2 hours in which time he visited three of her classes and again attempted to discuss some work with Respondent concerning student management techniques including the use of a seating chart. On or about October 18, 1983, Mr. Buckwalter visited Respondent approximately four hours during which time he visited several classes and observed her using ideas gleaned from the study group. On or about November 7, 1983, Mr. Buckwalter again visited with Respondent for approximately four hours. After the conference, he taught classes with her and implemented the use of instruments to enrich the class lesson as well as the implementation and use of progress charts. On or about December 9, 1983, Mr. Buckwalter visited with Respondent for approximately 3 hours. At this time, Mr. Buckwalter expressed concern in that Respondent was not clearly understanding the intent of the school board curriculum. Respondent was rated unacceptable in the areas of classroom management, techniques of instructions, teacher/students relationships, assessment techniques and professional responsibility during her annual evaluation for the 1984-85 school year. On or about October 29, 1984, Respondent was formally observed in the classroom by assistant principal, Edwardo Martinez. Although Respondent was rated acceptable, this class was not a typical situation but rather a rehearsal of a specific program. On other occasions, assistant principal Martinez had opportunities to walk by Respondent's classroom. He often noted loud noises emanating from her classroom. During these instances, he would enter the room and immediately settle the students down. On March 26, 1985, Respondent was formally observed in the classroom by Maybelline Truesdell, Principal of Dunbar Elementary. Based on this formal observation, Respondent was rated unacceptable in the areas of classroom management, instructional techniques and teacher/student relationships. (Petitioner's Exhibit 2). As a result of the unacceptable evaluation, Respondent was given a prescription form suggesting methods in which she could improve areas in which she was rated unacceptable. (Petitioner's Exhibit 2). Respondent was rated unacceptable in the category of classroom management based on her inability to retain the students attention; her failure to open and close classes appropriately and her general observation of students being off task. Respondent was rated unacceptable in the area of instructional techniques based on the observation that she did not interact verbally with students; students were inappropriately excluded from participating in discussions of the lesson and Respondent did not use instructional methods/materials which were appropriate for the students' learning levels. (TR pages 30-35). Respondent was rated unacceptable in the area of student/teacher relationships based on her improper focusing on a small number of students; inappropriately criticizing a student assistant in the presence of other students, and a failure to use sufficient positive interaction to maintain class control. On may 3, 1985, Respondent was again formally observed by Maybelline Truesdell and rated unacceptable in the areas of classroom management; instructional techniques; student/teacher relationships and assessment techniques. (Petitioner's Exhibit 3). Respondent was rated unacceptable in the area of classroom management as she failed to properly discipline students; failed to maintain classroom control and students were off task. In the area of techniques of instruction, Respondent received an unacceptable rating in one category which remained unremediated pursuant to a prior prescription issued by Ms. Truesdell. Respondent was again rated unacceptable in the area of teacher/student relationship based on her inability to display any of the indicators considered necessary to become acceptable and her continued rejection of students who volunteered or attempted to participate; her failure to involve the entire class by focusing her attention on a small number of students to the exclusion of others and her failure to appropriately address students by their name rather than "you." (TR 39-41). Respondent was rated unacceptable in the area of assessment techniques based on her failure to follow county and state guidelines for assessing students. Specifically, Respondent failed to provide substantial evidence of (documentation) to justify grades assigned to students and her grade books did not indicate if or when she was giving formal quizzes or tests. In addition, there was no letter grade or numerical indication in Respondent's grade books to gauge academic progress. Additionally, there was insufficient documentation in the student folders to back-up student progress or to otherwise substantiate the grades assigned to students. During the 1984-85 school year, Mr. Buckwalter returned to Dunbar Elementary to again assist Respondent. On September 6, 1984, Mr. Buckwalter visited Respondent for approximately three hours during which time he visited a class; co-taught a class and attempted to assist Respondent concerning improvement in areas of student behavior and management. On November 2, 1984, Mr. Buckwalter visited one of Respondent's classes. He thereafter visited Respondent on March 22, 1985 at which time he spent approximately two hours in her classroom. He taught five classes to demonstrate strategies of progressing students from one level to another. He thereafter conferred with Respondent concerning the need to reflect a positive attitude toward students.. On March 29, 1985, Mr. Buckwalter again visited Respondent. Respondent was then using materials suggested by Mr. Buckwalter although she utilized them in a "rote" manner and included too many concepts within a single lesson. On April 18, 1985, Mr. Buckwalter returned to observe Respondent. The students were going over materials that had been taught in past years and the new curriculum was not being taught. On May 23, 1985, Mr. Buckwalter spent four hours with Respondent. They concentrated on the development of lesson plans; planned activities concerning class objectives and stressed the need to remain-on one concept until it was understood by a majority of the class. Respondent's evaluation for the 1985-86 school year was unacceptable in the areas of subject matter knowledge instructional techniques; teacher/student relationships; assessment techniques and Professional responsibility. On October 10, 1985, Respondent was formally observed by assistant principal William J. Kinney. Respondent was rated acceptable in the area of assessment techniques. Mr. Kinney offered certain suggestions to Respondent including the fact that the lesson taught would be more beneficial by more student participation. Respondent was advised of a need to immediately cure problems respecting students who were observed hitting bells with pencils and pens and the need to immediately address problems when students were observed off task. During the school year, Mr. Kinney made numerous informal visits to Respondent's classroom at which times he observed loud noises coming from Respondent's classes, chanting, fighting, furniture pushed into the walls, student misbehavior and other indications that Respondent's classroom management was ineffective. On December 3, 1985, Respondent was officially observed by principal Truesdell and was rated unacceptable in the areas of instructional and assessment techniques. (Petitioner's Exhibit 6). Respondent was made aware of her continuing problems and was provided with an acknowledged receipt of a summary of the conference-for-the-record dated Thursday, December 12, 1985. (Petitioner's Exhibit 7). Additionally, Respondent was given specific instructions in the form of a prescription concerning her grade book and instructed to strictly follow the conduct prescribed. (Petitioner's Exhibit 7). In the opinion of principal Truesdell (received as an expert in the area of teacher assessment teacher evaluation, teacher observation in the role of school principal) Respondent was unacceptable for further employment by the school district, was continuing to demonstrate ineffective classroom management, instructional techniques, assessment techniques and had done so for such an extended period of time that improvement appeared unlikely. Additionally, Ms. Truesdell considered that Respondent was unable to make sufficient competent analysis of students' individual needs and potential in the classroom; failed to ensure and promote the accomplishment of tasks to the proper selection and use of appropriate techniques; failed to establish routine and procedures for the use of materials and physical movements of students in her class; failed to employ the appropriate techniques to correct inappropriate student behavior; failed to demonstrate competence in evaluating learning and goal achievement by her students and failed to demonstrate appropriate interpersonal skills required of a teacher to maintain discipline and effectively teach in a classroom environment. On February 7, 1986, Respondent was officially observed in her class by Marilyn Von Seggern, music supervisor for Dade County and by Ms. McCalla, assistant principal at Dunbar, under the provision of the TADS program. (Petitioner's Exhibit 23). Following that observation, Respondent was rated unacceptable in the areas of subject matter knowledge, instructional techniques, assessment techniques and teacher/student relationships. In the Professional opinion of Marilyn Von Seggern, received herein as an expert in the areas of music education, teacher observation and assessment, Respondent was depriving students of the minimum educational experience and had serious problems concerning her ability to communicate and relate to students respecting the music curriculum. On January 16, 1986, Respondent was formally observed in her classroom by Dunbar's assistant principal Carolyn Louise McCalla, and was rated unacceptable in the areas of classroom management, techniques of instruction and assessment techniques. (Petitioner's Exhibit 24). Based on Mr. Buckwalter's repeated observation of Respondent's classroom and teaching techniques, Mr. Buckwalter opined that Respondent's students were not receiving the minimum education required by the Dade County School System as concerns the curriculum for music. As example, on one occasion Mr. Buckwalter observed Respondent presenting an organized lesson to students which was quite successful and upon his return approximately five minutes later, Mr. Buckwalter observed that Respondent was not teaching the new successful lesson but had instead reverted back to an old lesson and her students were observed inattentive and generally off task. (TR pages 250-254). On March 26, 1986, Respondent was having difficulty maintaining her students' attention to the point that the students were out of control. While Respondent was attempting to stop a certain student from chanting and beating on the desk, Respondent tried to restrain the student and in so doing, Respondent broke her watch band and scratched the student on her face. The student required hospitalization and although the injury was deemed an accident, Respondent's lack of classroom control and management played a major part in causing the incident. Pursuant to a request by the School Board, Respondent, on April 30, 1986, was evaluated by psychiatrist, Gail D. Wainger. Dr. Wainger took a medical history from Respondent which included Respondent's revelation of previous psychiatrist treatment. Dr. Wainger observed that Respondent had a very flattened, blunted affect with little emotional expression. She related that this was a sign of a patient who was recovering from a major psychiatric episode. Additionally, Respondent showed difficulty recalling recent events. Dr. Wainger diagnosed Respondent as having chronic residual schizophrenia with a possible personality disorder including impulsive and avoidance features. Dr. Wainger opined that a person with such diagnosis would have difficulty being an authority figure and that this would be especially Problematic for students who needed positive reinforcement. On April 28, 1986, Respondent attended a conference-for-the-record with the school board's administrative staff. A past history of performance and evaluations was reviewed. Additionally, the investigative report concerning the injury of the student which occurred March 26, 1986 was also reviewed. Respondent was informed that the matter would be referred to the School Board for possible disciplinary action. (Petitioner's Exhibit 31). On May 21, 1986, the School Board took action to suspend Respondent's employment and initiated the instant dismissal proceeding against her. (Petitioner's Exhibit 32). For the 1985-86 school year, Respondent's annual evaluation indicated that she was rated unacceptable in five of seven categories and was not recommended for re-employment. (Petitioner's Exhibit 13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, School Board of Dade County, enter a Final Order sustaining the suspension, without pay, of Respondent, Gloria E. Walker and dismissing Respondent, Gloria E. Walker as a teacher in the Dade County Public Schools. That the Petitioner, Ralph D. Turlington, as Commissioner of Education, entered a Final Order finding Respondent guilty of incompetency and incapacity. It is further Recommended that the Education Practices Commission enter a Final Order suspending Respondent's Florida Teacher's Certificate No. 294140, issued by the Department of Education, State of Florida, for a period of three years based on incompetence and incapacity. DONE and ENTERED this 2nd day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1987.
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
The Issue The issue is whether Petitioner may terminate Respondent’s professional service contract as a teacher for unsatisfactory performance or incompetence.
Findings Of Fact Petitioner first employed Respondent on August 23, 1977, in a paraprofessional position as a bilingual tutor. While so employed, Respondent attended Nova University working toward a degree in early education. She earned her degree in 1989 and received a teaching certificate in elementary education and English Speakers of Other Languages (ESOL). Respondent’s first instructional assignment was as an ESOL teacher at the start of the 1989-90 school year. She did not have a classroom, but taught as a pullout teacher. She remained in this position for four years. Respondent was first assigned to a regular classroom in the 1993-94 school year when her ESOL program was terminated. She taught a combined first and second grade class for the 1993- school year and then taught a second grade class for the 1994- school year. On March 1, 1994, Susan Griesinger became the principal of Tice Elementary School. There was little substantive contact between Dr. Griesinger and Respondent during the 1993-94 school year. During the 1994-95 school year, Dr. Griesinger twice observed and evaluated Respondent’s classroom performance. The evaluations were satisfactory. The Summative Observation Instrument for an observation of a second-grade mathematics class on November 17, 1994, contains numerous indications that Respondent has adequately organized and presented the instructional material. Student misbehavior was not an issue during the class. Dr. Griesinger concludes the evaluation by writing: “Your enthusiasm is catching! Many concepts in one lesson. Students enjoyed the clocks.” Dr. Griesinger prepared a second Summative Observation Instrument for an observation of another second-grade mathematics class on February 27, 1995. This evaluation is much the same as the first and concludes: “This was a hard concept. I am glad you gave the children actual shapes.” On March 6, 1995, Dr. Griesinger prepared Respondent’s year-end Performance Assessment. Respondent received satisfactory grades in all 40 categories. These grades are “Effective level of performance,” which is the only satisfactory grading option on the form. However, for two categories for which Respondent received satisfactory grades, Dr. Griesinger noted the need for “Focus for development/feedback.” Falling under “Presentation of Subject Matter,” the two categories were “Teaches a systematic process for developing academic values” and “Demonstrates knowledge of subject matter.” The Performance Assessment concludes: “Carmen has tried very hard this year to reach all students. She has a positive attitude.” Between the preparation of the Performance Assessment and the end of the 1994-95 school year, Dr. Griesinger and her assistant principal, Holly Bell, began receiving parent complaints about Respondent. The parents questioned whether Respondent could control her class. When Dr. Griesinger asked Respondent about the complaints, Respondent attributed the problems to a handful of misbehaving students. The following school year, Dr. Griesinger observed Respondent’s teaching more closely to see if there was a problem. Dr. Griesinger, Ms. Bell, and the guidance counselor conducted several informal observations of Respondent’s classroom. During the summer, Tice Elementary School had received a grant to hire an outside teaching consultant to train teachers in peer coaching. Dr. Griesinger asked the consultant, Kaye Sutcliff, to observe Respondent and make suggestions. Ms. Sutcliff observed Respondent and suggested that she find other employment. On October 24, 1995, Dr. Griesinger sent a memorandum to Respondent confirming a meeting that they had had the prior day. The memorandum memorializes a concern with the “lack of classroom management we see this year” and states that Respondent is not consistent with discipline. The memorandum also mentions another concern as to how Respondent “present[s] your content to the students.” The memorandum elaborates: Last year I had a difficult time following your lesson when I came in to do your observation. I talked with you about some things you could have done differently. You need to be very specific when you are introducing new concepts. The memorandum concludes that Dr. Griesinger will be doing formal and informal observations to assist Respondent. The memorandum restates that Dr. Griesinger has asked Respondent to work closely with her coach and video and audio tape her lessons to see how she can improve and make her content clearer. The memorandum tells Respondent that Dr. Griesinger, Ms. Bell, and Lynn Pottorf will work with Respondent to try to help her. Ms. Pottorf was the Elementary Generalist Coordinator employed in the District office. On January 4, 1996, Dr. Griesinger wrote a memorandum to Dr. Madeline Doran, Director of Personnel, asking that she place Respondent in the Intensive Assistance Program as soon as possible due to “extreme difficulty with classroom management, curriculum content and lesson delivery.” Acting on the advice of Dr. Griesinger and Dr. Doran, Dr. Jerry Baker, Assistant Superintendent for Human Resources, informed Respondent by letter dated January 24, 1996, that he was placing her in the eight-week Intensive Assistance Program. As part of the program, Dr. Doran formed an assistance team consisting of Dr. Griesinger, Ms. Bell, Ronalee Ashby, and Ms. Pottorf. Ms. Ashby is the District Coordinator of Personnel Services. The purpose of the team is to help the teacher as much as possible through observing her classroom teaching and discussing their findings with the teacher at weekly meetings. The team reviews the teacher’s performance and recommends further action to Dr. Doran. The Intensive Assistance Program informs the teacher that, based on input from the team and Dr. Doran, Petitioner may determine that the teacher’s performance is adequate, extend the Intensive Assistance Program for another eight weeks, recommend reassignment to a more suitable position, withhold recommendation for an annual reappointment, determine that the teacher’s performance is inadequate and recommend dismissal or recommend acceptance of the teacher’s resignation. On January 30, 1996, Ms. Ashby had a meeting with Respondent during which Ms. Ashby explained the Intensive Assistance Program in detail. Respondent completed an interview form for the Intensive Assistance Program. In the form, Respondent noted no particular problems interfering with her teaching. She stated that she was “okay with subj[ect],” but had some problems gathering materials. She mentioned two students out of 20 in her class who presented behavioral problems and one student who presented academic problems. She stated that she would like to get the students more involved. She stated that her general health was “good--some headaches,” and she denied having any nonschool problems adversely affecting her teaching. On March 20, 1996, Jo Ellen Kessler, Coordinator of Curriculum Services, conducted a two-hour observation, concluding that she never saw Respondent provide instruction for the students. Ms. Kessler stated: Dr. [Griesinger] asked that I spend at least one hour in the classroom. I spent approximately two hours there because I kept waiting for Ms. Hernandez to provide instruction for the students. During the time I was in the classroom, there was no review of any material. There was no introduction, no initial instruction. No clear directions were given for doing the activities on the chalkboard. The students were given no reason for learning. There was no motivation for learning, no personal connections made. There were no instructional materials prepared for them to use during the lesson, other than the things written on the chalkboard--certainly not the best way to engage students. There was no evidence of any materials prepared for students of differing abilities. There was no instruction given to help any of them learn the skills involved. . . . The children who behaved nicely were not really acknowledged for their attention or behavior. No specific praise was given to any student. Most of the well behaved children were not given an opportunity to be involved in the tasks. They sat with nothing to do. The students were given no clear expectation of what their behaviors should be. They had no limits set, no idea of what was acceptable and what was not. The students were not engaged in any of the tasks. They hung over their desks, put their heads down and appeared quite bored. In summary, the students did almost nothing for a two-hour period. The teacher was not teaching and was completely ineffective in managing their behavior. They were not involved in meaningful review or practice. Their behavior would be much improved if they had well-planned instruction and materials and if they were given meaningful learning tasks. The children in the room appeared to be bright and willing to learn, but they were not given the opportunity to do so. On March 22, 1996, Dr. Baker, Assistant Superintendent for Human Resources, sent a letter to Respondent giving her official notice, pursuant to Section 231.36(3)(e), Florida Statutes, that her performance was “unsatisfactory” and, if the deficiencies were not corrected next year, he would recommend that the School Board terminate her at the close of the 1996-97 school year. On March 25, 1996, Dr. Griesinger prepared Respondent’s year-end Performance Assessment. In contrast to the preceding year, Respondent received only four satisfactory grades, all in conformance to school and district rules. Nearly all of the other grades were “Unacceptable level of performance observed.” The Performance Assessment concludes: “Carmen needs to improve drastically in all areas.” On the same day, Ms. Bell had to go to Respondent’s classroom to restore order. Hearing Respondent and students shouting from outside the door, Ms. Bell found seven students out of their seats and the remaining students seated with nothing to do. The prior day a substitute teacher had had no problem with the class. On or about April 4, 1996, Respondent went on medical leave for the rest of the school year due to anxiety and menstrual problems. At the hearing, Respondent produced little, if any, evidence concerning the onset of her medical problems or their effect on her teaching. The preponderance of the evidence proves that demands that Respondent improve her classroom performance preceded the medical problems, although Respondent’s complaints of anxiety may have been exacerbated by these demands. Dr. Griesinger hired a substitute teacher for the remainder of the school year. The substitute teacher had no problem teaching Respondent’s class for the next two months. Respondent returned to work at the start of the 1996-97 school year with clearance from her physician. She was assigned a second grade class. Separate observations on September 4, 1996, by Dr. Griesinger and Ms. Bell record a boy barking like a dog in the back row during class without notice from Respondent, a boy sleeping so soundly that Respondent twice could not awaken him and gave up trying with a shrug of her shoulders, and motivated students losing interest after Respondent never called on them despite having their hands up for long periods of time. In all cases of misbehavior, Respondent imposed no consequences. During an observation on September 5, 1996, Respondent repeatedly asked the class what mountains look like. While she was doing so, one boy, who had been in and out of his seat for five minutes, managed to get the teacher’s manual off Respondent’s desk, give it to the observer, and tell the observer that this is where Respondent gets all her questions. At the same time, a girl, who was playing while in her seat, made two trips to the bathroom in 30 minutes, spending the second visit playing in the bathroom, turning the fan on and off. After teaching from August 20 through September 12, 1996, Respondent again went on medical leave. Dr. Griesinger hired a new teacher to take over the class. On October 3, 1996, Ms. Ashby sent a memorandum to the then-counsel for Petitioner advising him that Respondent’s classroom performance has continued to deteriorate and that he should review the file for proceeding with a predetermination hearing for “incompetency,” noting that Petitioner had given her notification last spring that she had “one year and six weeks to improve.” On October 21, 1996, Dr. Griesinger sent a letter to Respondent confirming their conversation of October 7 in which Respondent informed Dr. Griesinger that she would be taking the year off for medical reasons. The letter asks Respondent to call Dr. Griesinger prior to October 25 if this is incorrect. Respondent did not call Dr. Griesinger in response to the October 21 letter. Instead, a few days before Christmas vacation was to start, Respondent contacted Dr. Griesinger and told her that she would be returning to teach when school started again in January. Dr. Griesinger justifiably decided not to disturb the second grade class that the replacement teacher was handling quite well. Dr. Griesinger instead formed a new fourth grade class and assigned it to Respondent. Respondent began teaching the class on the first day of school after vacation, which was January 6, 1997. On January 9, 1997, Ms. Pottorf observed Respondent’s fourth grade social studies class. She found that the students were well-behaved and on-task for only about 10 minutes. The lesson was “disjointed,” and Respondent displayed an obvious unfamiliarity with the subject matter, as evidenced, for instance, by her inability to find a definition for “pioneer” in the text or her incorrect assumption that the Miami Indians were a tribe in Florida, not Ohio. She referred to the two or three students who had read the lesson as “her friends who knew the answers,” excluding the remainder of the class. Respondent failed to guide students’ responses, allowing the same answers and silly answers to continue. Unaware of the time, Respondent allowed the lesson to end without review or conclusion. The next class was reading. Respondent immediately lost the attention of the class by engaging in a discussion with a child about the seating arrangements. For no good reason, Respondent required the class to cover material that had been covered earlier in the week. She displayed a poor command of the reading material. For instance, telling the students that “errors” were to be called “challenges,” Respondent proceeded to use the words, “error” or “mistake” throughout the lesson, each time adding that “We are to call them challenges.” Randomly checking workbooks, Respondent failed to note which students had done their work and which had not. After a student was left without a reading partner, Respondent said she would be his partner, but she never returned to be his partner. When the students became loud and off-task, Respondent required them to call out the reading words in unison with her arm signals. She made them repeat words numerous times, to the obvious irritation of the students. After one child asked her not to do this, and, in response to Respondent’s inquiry, the rest of the class asked to be spared the repetition, Respondent agreed not to continue asking them to repeat the same word. But she continued to do so. At one point, she made them start over because they did not show enough energy, as the task became filler for the period, which ended without review or conclusion. On the same date, Ms. Bell did an observation of Respondent. She noted that the majority of the students were off-task. Respondent repeatedly tried to restore order by telling the students to look at the rules, but there were no rules posted anywhere in the classroom. On January 10, 1997, Respondent enlisted the students’ assistance in adopting classroom rules. A list of seven rules was disorganized, with some rules encompassing all of the others. The students became more restless when Respondent asked about consequences. No one answered her questions about consequences as the process became more disordered. Respondent evidently did not understand the point system that she had developed, leaving the whole system confusing and unmanageable. Later, a child privately asked to be Respondent’s helper. Respondent announced this request to the class, but did not otherwise acknowledge it. Respondent moved into a lesson on pronouns, but could not define a pronoun. Abruptly leaving this lesson after only three minutes, Respondent presented a new lesson on narrative writing, which she explained in one rambling sentence interspersed with frequent allusions to the rules and consequences that they had just worked out. Few students were on-task by this time. Respondent taught through February 6, 1997. At that time, Petitioner suspended her for her poor classroom performance. Respondent’s three major problems in the classroom were that she did not know her material, could not teach, and could not control the behavior of her students. She wasted time in transitions, such as to lunch, physical education, or taking attendance. She missed many opportunities to reinforce good behavior and frequently reinforced bad behavior by ignoring visible defiance or even unwittingly rewarding it. She confused students as often as she instructed them and displayed no idea of how she could explain content to her students. She sometimes displayed an uncertain grasp of even elementary materials. The result of these deficiencies is that Respondent impeded learning by repeatedly failing to communicate with and relate to the students to the point that they were deprived of a minimum educational experience. There is evidence of effective instances of teaching by Respondent. Undoubtedly, Respondent had some days that were better than others. However, Respondent’s performance as a teacher was so bad so often that she was ineffective and incompetent as a teacher. Numerous individuals observed her work in the classroom and found it seriously deficient. Ms. Ashby ultimately opined that, after a long career in education, Respondent, whom she described as a “horrible teacher,” was “one of the worst teachers I ever worked with.” Respondent tried to show at the hearing that her teaching problems were the result of her health problems. As already noted, the evidence shows that her teaching problems preceded the emergence of her health problems. However, even if the health problems preceded the teaching problems, Respondent, with the approval of her physician, returned to the classroom in January 1997 and performed abysmally. There is absolutely no evidence to suggest that her health problems, or other mitigating factors, induced Respondent (and her physician) to decide that she could return to the classroom in January. The impact of her poor performance was dramatic, as the learning of her students slowed and even ended upon her return to the classroom. Respondent argues that Dr. Griesinger and others in the administration were biased against her for reasons that are unclear from the record. Although Dr. Griesinger decided by no later than January 1997 that Respondent was not going to be able to eliminate her performance deficiencies, this determination was supported by the record and was not indicative of bias. Dr. Griesinger’s determination did not distort her observations, which were corroborated by several other individuals. Respondent understandably draws support from Dr. Griesinger’s initial positive evaluation. This evaluation was more likely due to a combination of her carelessness and optimism, as she converted an evaluative instrument to a device designed to encourage and promote one of her classroom teachers. Most likely, Respondent was ill-suited to assume the responsibilities of a classroom teacher when she began teaching second grade in the fall of 1993, but may have initially escaped the serious problems that later befell her due to a combination of factors, such as the youth of her students, extraordinary effort of what was effectively a new teacher, and inattentiveness of the school administration.
The Issue The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s sore foot, he advised K.G. that hitting was no basis for settling any dispute. K.G. allegedly responded that he hit anyone he wanted at any time. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed. RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992. ARNOLD H. POLLOCK 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 5th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. First two sentences accepted and incorporated herein. Third sentence rejected as not supported by competent evidence of record. 7. Rejected as argument and contra to the weight of the evidence. 8. Accepted and incorporated herein. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat. & 18. Accepted in part. The better evidence indicates that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach. Accepted and incorporated herein. Accepted and incorporated herein. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented. Accepted and incorporated herein. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation. Accepted. This was not found to have happened, however. For the Respondent: 1. - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted but what was in the Respondent's mind - his purpose - is unknown. Accepted and incorporated herein. Accepted and incorporated herein. - 13. Accepted and incorporated herein. & 15. Accepted. Accepted and incorporated herein. Accepted. A.C.'s partial disciplinary record has been incorporated herein. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 William Du Fresne, Esquire 2929 SW Third Avenue, Suite One Miami, Florida 33129 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Jerry Moore Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 George A. Bowen, Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent began working for Petitioner School Board in 1960 as a teacher and has been so employed for approximately twenty years, with several breaks in service. At all times material hereto, Respondent has held Florida Teacher's Certificate No. 112370, Rank 1, covering the areas of elementary education, social studies, and junior college. During the 1981-82 and 1982-83 school years, Respondent worked as a social studies teacher at Cutler Ridge Junior High School. Prior to the 1981-82 school year, Respondent served as a CSI instructor for several years. CSI is the Center for Special Instruction and is an indoor suspension system. Students who have had difficulty in school, such as skipping classes and defiance of authority, are sent to the CSI room where they are isolated from their classmates to work on their regular school assignments. When Dr. John Moore became principal of Cutler Ridge Junior High School for the 1981-82 school year, he became aware that the CSI program needed to be strengthened. Parents, community leaders, and staff members of the school felt that the CSI program was not supportive of the disciplinary structure of the school, and teachers had been complaining about CSI. When Respondent was informally observed in the CSI room, the students "seemed to be having an extremely good time there . . . [,and] were running their own show, . . . [so] they liked going to CSI." The students were out of their seats, moving around at will, and some were walking in and out of the classroom. The room was noisy and in one instance in November 1979 the students were throwing a football around the room. When Dr. Moore reviewed the schedule for 1981-82, he saw that Respondent had a split schedule of part-time in CSI and part-time in social studies. He changed Respondent to a full-time social studies schedule, initially with four seventh-grade classes and one eighth-grade class. As a result of the suggestion of Respondent and another teacher, Dr. Moore merged the two teachers' schedules so that Dr. Sullivan ended up with a straight seventh- grade schedule. This would have reduced the amount of lesson planning required by Respondent and would have made his work load easier. Seventh-grade social studies is the simplest assignment Dr. Moore could have given a social studies teacher. During the 1981-82 and 1982-83 school years, a pattern could be discerned in Respondent's teaching. During each of those years, there was a relatively positive start with erratic performance during the first semester. By second semester, there was substantial disaster and a total lack of a learning environment. This erosion pattern was attributed to Respondent's teaching techniques. During the first semester of each year, Respondent had the students working at the lowest level of cognitive ability, i.e., memory work. Students became bored with that after a period of time. Respondent was not using feedback mechanisms to tell him what the students were understanding. Respondent did not teach in a logical sequence beginning with the first semester. These things led to frustration and boredom on the part of the students, and negative behavior became apparent. The negative behavior became resistive. This led to the erosion as above described. Respondent was formally observed by Assistant Principal James Marshall on November 16, 1982. Respondent was rated overall unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Respondent was unacceptable in preparation and planning because he had no lesson plans. He was rated unacceptable in classroom management because of the disorganization of his class. He was rated unacceptable in techniques of instruction because he did not adapt materials and methods to the needs and abilities of his students and failed to provide opportunities for the students to express their ideas. He failed to give specific directions to the students and only used one technique of instruction, i.e., the lecture method. Mr. Marshall prescribed help for Respondent. He recommended that Respondent formulate good lesson plans according to the scope and sequence of the curriculum. A portion of the lesson plan should contain a procedure for the evaluation of the students. He recommended that Respondent praise the students and that Respondent try to obtain enough textbooks. If he could not, he should utilize duplicated materials. Mr. Marshall pointed out how Respondent could change the seats of his disruptive children and call the parents to see whether he could get some backup from them. The next formal observation of Respondent was performed by Assistant Principal Albert Villar on January 8, 1982. Respondent was found overall unacceptable and was rated unacceptable in the categories of preparation and planning, classroom management, assessment techniques, teacher-student relationships, and professional responsibility. He was rated unacceptable in preparation and planning because the students were taking a test which was written on the chalkboard. The test was confusing to the students, and they were not certain as to what part of the test they were to take. Further, the test was not visible to the entire class. Respondent was rated unacceptable in classroom management because students walked in and out of the classroom, several students were talking during the test, and some were putting on makeup. Respondent was marked unacceptable in techniques of instruction because the students needed to answer questions with the textbook, and not all of the students had a textbook accessible to them. Respondent told the students to share, which is inappropriate because there would be a tendency to cheat on the examination. Respondent was marked unacceptable in assessment techniques because he did not have a written copy of the test; therefore, it would be impossible for students who are absent to make up the test. There also should have been a copy of the test in the students' folders. Respondent was marked unacceptable in teacher-student relationships because the lack of textbooks led to a relationship which did not reflect equal recognition and respect for every individual. Mr. Villar made recommendations for improvement. He recommended that if Respondent wanted to use a chalkboard test, he should have a written copy in the students' folders, and he should enforce his classroom rules about students not talking during a test. Respondent's next formal observation was performed by the principal, Dr. John Moore, on January 27, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, teacher-student relationships, and professional responsibility. He was rated unacceptable in preparation and planning because the lesson he taught was not the lesson described on his lesson plan. The inadequate planning led to classroom management problems. Throughout the observation, the students were "off task, doing their own thing, talking to each other and so on." The students and Respondent were talking at the same time. Eight students were chewing gum, which is against school rules. Techniques of instruction were rated unacceptable because the students were no on task. Respondent was not getting the students involved in discussions or in expressing their ideas. He was not getting feedback from the students because the students were talking among themselves. With teacher-questioning techniques, Respondent could have gotten the students involved. He could have gotten them on task by giving them quizzes or handouts which could structure their learning. Instructions were given while the majority of the class was talking, and the students were not challenged. Respondent was rated unacceptable in teacher-student relationships because throughout the observations there were repeated examples of students' disrespect, students yelling out across the room, students talking back and refusing to follow instructions. There was no reaction by Respondent. The bulk of the students were not responding. Professional responsibility was marked unacceptable because at the beginning of the year, Respondent was directed to enforce his class rules and to establish an effective learning environment. This was a general disciplinary project for the whole school. Dr. Moore prescribed help for Respondent. He recommended that Respondent work with his department chairman to review grade level objectives and to be certain that his lesson plans reflected the Dade County Balanced Curriculum requirements. Dr. Moore also recommended that he meet with a fellow teacher to review how she prepared her lesson plans. Dr. Moore recommended that Respondent enforce his class rules and that instead of using an oral approach, Respondent should develop handouts for the students. This would give them some structure as to what they are going to do. He recommended having homework guidelines and using review quizzes. Respondent was next formally observed by Mr. Marshall on February 5, 1982. Respondent was rated unacceptable overall and was marked unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, and teacher-student relationships. Respondent was rated unacceptable in preparation and planning because while he had lesson plans, they were not done according to the sequence and pattern prescribed in the school. Respondent did not get the students to work right away at the beginning of the period and the students were not on task. Classroom management was rated unacceptable because Respondent had no control of the students. The students were doing what they wanted to do and were disrupting the class. Respondent was marked unacceptable in techniques of instruction because he did not adapt materials and methods to the interests, needs and abilities of his students. He was lecturing the students, and this technique did not allow the students to participate. Respondent was marked unacceptable in teacher-student relationships because the relationship was not a positive one: the students were not guided into a class discussion by Respondent; there was no relationship between Respondent and the students, and the students did not want to give information to the teacher. They just wanted to sit there. Mr. Marshall prescribed help for Respondent. He requested that Respondent make sure that each student participate in the learning activities. He recommended that Respondent duplicate the assignments so that there would be enough for all students to have and that Respondent guide the students in a discussion from his daily lesson plan. Respondent was next formally observed on February 16, 1982, by Phyllis Cohen, Area Line Director for the Dade County Public Schools. Respondent was rated overall unacceptable and was found unacceptable in the areas of preparation and planning, knowledge of the subject matter, classroom management, techniques of instruction, and teacher-student relationships. The instructions given to the class were not comprehensible. None of the things that were indicated in the lesson plan occurred. As a result, when the students were divided into three groups and told to read, without the appropriate directions, each group proceeded not to read. As the lesson progressed, the behavior deteriorated more and more until at the end of the lesson, three-quarters of the class was off task. There was an elaborate lesson plan, but it was not followed. Knowledge of the subject matter was rated unacceptable because the teacher did not demonstrate a knowledge of the content of the chapter while he was giving class directions. Respondent was marked unacceptable in classroom management because his class management practices needed much improvement. Respondent was marked unacceptable in techniques of instruction because he did not adapt materials and methods to the interests, needs and abilities of the students. Further, he did not use instructional strategies for teaching the subject matter. Respondent was rated unacceptable in assessment techniques because many of the students' papers were not graded, most of the work on file was work book papers consisting of mostly short answers and recall questions, and there were very few essays. Mrs. Cohen recommended help for Respondent. She directed him to develop lesson plans which are useful and which list key concepts, activities, questions and vocabulary. She directed him to work with the principal who would provide models for his use. She recommended that the department head arrange to have Respondent observe a master teacher presenting a civics lesson. She recommended that he observe teachers who exhibit good class control, that he become aware of what the students are doing, and that he review and enforce class standards for behavior. She recommended that he work with the assistant principal to improve class management techniques and that Respondent have a five-minute start-up activity on the board fro students to do when they enter the class in order to settle the class down, take attendance, and begin the lesson in a more orderly fashion. She also recommended that he improve his presentation strategies and teaching techniques by working with the social studies department head. The next formal observation was performed by Mr. Marshall on March 11, 1982. Respondent was rated overall unacceptable and was found to be unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. He was rated unacceptable in preparation and planning because his lesson plans were not adequate, unacceptable in classroom management because there was still a problem with student control and participation, and unacceptable in techniques of instruction since he still was not adapting materials and methods to the interests, needs and abilities of the students and was not providing opportunities for the students to express their ideas. Mr. Marshall prepared a memo in which he listed teaching techniques that would help improve Respondent's teaching. He recommended that Respondent praise the students more. Respondent was next formally observed by the social studies supervisor for the Dade County Public Schools, Paul Hanson, on March 19, 1982. Respondent was rated overall unacceptable and was found unacceptable in the categories of classroom management, techniques of instruction, assessment techniques, teacher- student relationships, and in one subcategory of preparation and planning because the plans which were written were not compatible with what actually took place in the classroom. Respondent was rated unacceptable in classroom management because there was no means of controlling the students who talked and moved about the classroom at will. The discipline was nonconducive to a learning environment since students were talking, out of their seats, and not on task. Very little learning was taking place. Techniques of instruction were marked unacceptable because the students were not motivated, and the instruction given them was not conducive to learning for junior high students. The activities in the classroom did not reflect the adoption of materials and methods to the interests, needs, and abilities of the students, and there was confusion in the class. Respondent was rated unacceptable in assessment techniques because the test which was observed did not equate with the instruction taking place, the test construction was very poor, and there were a number of grammatical errors on it. What was being tested was not compatible with what was being taught at the time, according to the lesson plan. The grades and records of the students' achievement were not up to date but rather were about two to three weeks behind. Therefore, the students' progress was not being monitored on a daily basis. Respondent was marked unacceptable in teacher-student relationships because of the behavior problem in the class. There seemed to be very little respect for the students on the part of the teacher, and it was difficult to determine who was in control of the class. Mr. Hanson recommended that the lesson plan be more specific and that it equate with what takes place in the classroom. He recommended that Respondent observe other teachers for their classroom management techniques and that a staff development course be taken. He also suggested that Respondent observe a master teacher for the techniques of instruction. Mr. Hanson provided some reading materials to Respondent dealing with such topics as how to conduct a classroom discussion, how to manage a social studies classroom, and how to use audiovisual films in a social studies classroom. The next formal observation of Respondent was done by Dr. Moore on April 13, 1982. Respondent was rated overall unacceptable and unacceptable in the categories of preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, assessment techniques, teacher- student relationships, professional responsibility, and supportive characteristics. There was no improvement in this observation over the prior observations. Preparation and planning was unacceptable because the majority of students were off task during the observation, the written plan was not in compliance with the prior prescriptions and the lesson plan was not followed by Respondent. Knowledge of subject matter was marked unacceptable because Respondent failed to provide students with necessary explanations to implement the lesson plan. He confused the teaching objective with directions for student activity. Classroom management was marked unacceptable because the students were off task, were frequently moving, were constantly socializing, and a student was permitted to defy Respondent without consequences. Also, there were forty wads of paper on the floor. Techniques of instruction wee marked unacceptable because Respondent gave materials to the students prepared by the National Council of Social Studies for teacher use without modifying or adapting these materials for student use. He did not provide opportunities for students to express their ideas, although this was called for in his lesson plan, and he gave confusing directions to the students. The distribution of the National Council materials caused organization problems, and confusing directions used excessive class time. Respondent was marked unacceptable in assessment techniques because he did not make an assessment of each student's academic progress. He gave the students credit based upon untested assertions of mastery of assignments. He asked the students to "Tell me if you know this . . . I'll mark it down and you can go on. . . ." Teacher-student relationships was rated unacceptable because defiant students regularly disregarded his direction to stop talking. Respondent was marked unacceptable in professional responsibility because he had failed to comply with directives regarding remediation practices. He was found unacceptable in supportive characteristics because it was found that he did not contribute to the total school program. Dr. Moore recommended that Respondent review prior directives on lesson planning and comply with those. He further recommended that Respondent review material with his department head and that Respondent implement the posted consequences for student behavior. Dr. Moore submitted a memorandum to Respondent outlining the problems that he saw in this observation and compiled a list of pertinent materials available in the media center. On April 16, 1982, Dr. Moore made Respondent aware of a parent complaint concerning the basis for a student's grade and the failure to notify the parent of the lack of student progress. As a result of that parent complaint, Dr. Moore reviewed Respondent's grade book and found a variety of deficiencies: There were grades that were not identified; there was no indication of makeup work, and the mechanics of keeping grades were absent. The grade book is a document which is required by law and by School Board rule. It is an attendance record and a primary record of the student's progress as compared to the course standards. Dr. Moore provided a memorandum to Respondent indicating what improvement was needed. Around the same time, Respondent became ill and was hospitalized. A series of memoranda were sent from the school to the Sullivans and vice versa. It was difficult to ascertain the nature of Respondent's illness and the expected length of his absence. Eventually it was determined that Respondent's illness was genuine, and he was given an opportunity to return to his school to complete his prescriptions. Respondent was next formally observed by Althea King, Assistant Principal, on October 18, 1982. This was the first formal evaluation under the TADS system. There is no overall rating on the individual TADS observation forms. This observation showed a great improvement over the prior observations. Prior to this observation, Mrs. King met with Respondent to go over the things she would be looking for and made an appointment with Respondent for her observation. Although Respondent sincerely desired to improve, he was found unacceptable in preparation and planning because his plan did not fill the allotted time. Mrs. King observed Respondent for one hour and found that there were 20 to 25 minutes remaining in the class period when the students had finished an activity and were not provided another activity. Mrs. King noted that preparation and planning is very significant because it is the means of gaining control of the classroom. She recommended that Respondent read certain sections of the teacher handbook and complete activities therein to help him develop a lesson plan that would have the various essential parts. The next formal observation was done by Dr. Moore on November 8, 1982. He found that Respondent's classroom management was above a minimally acceptable level. The class was noisy, but it was under control. There was, however, substantial deterioration in the other categories. Dr. Moore directed Respondent to give priority attention to the other five areas since progress had been made in classroom management. He further directed Respondent to outline the sequence of key concepts and generalizations for each unit and to discuss them with the department head to insure consistent comprehension. He directed Respondent to use inquiry strategies and to review a section in the faculty handbook to implement activities listed therein. He directed Respondent to list specific student objectives in behavioral terms in his lesson plans. The next formal observation was done by Dr. Moore on December 15, 1982. The observation, which was scheduled in advance, was relatively good. There was improvement in a number of areas over the preceding observation although Respondent was still not dealing with students who were off task, a fault which eventually leads to deterioration. Respondent was weak in using feedback mechanism. This is a shortcoming in teacher-student communication, indicating whether or not the teacher knows what the students are really perceiving and learning. In order to help Respondent, Dr. Moore recommended that Respondent read sections in the TADS prescription manual and attend Teacher Education Center workshops on teacher-student relationships and on assessment techniques. Shortly after the Christmas break, there was apparent deterioration of behavior in the classroom. There were reports from other teachers of loud, disruptive behavior. Respondent was directed to confer with Assistant Principal Daniel McPhaul and to make sure the students know that there will be consequences if they do not behave. Starting at this point, there was the same pattern of disruption that had been seen in the prior school year. Respondent was making no visible effort to restore order in his classroom. The next formal observation of Respondent was done by Dr. Moore and Mr. Hanson jointly on February 8, 1983. Respondent was not found acceptable in any category. The class lesson consisted of giving workbooks to the students. There was no teaching, simply a passing out of materials. This failed to keep the students on task. There were consistent violations of the class rules and no consequences. Media still was not being used, and there were wads of paper on the wall. Respondent was marked unacceptable in preparation and planning because his lesson plan did not fill the allocated time. What was planned covered only 30 minutes of a 55-minute period. What was going on in the classroom did not follow the lesson plan, and what was being done was not included either in that lesson or the lesson plan for the next day. While Respondent exhibited knowledge of the subject matter, he was not found acceptable in the area of presentation of the subject matter. He used a "scattergun" approach. With the remaining 30 minutes, he filled in the time with something completely irrelevant to the plan for the day and irrelevant to the general overall plan for the week. The information presented to the children was simply handed to them with no logic or reason why they were getting this information. The information presented was not timely. Only one cognitive level was utilized in the entire classroom period, the lowest level-recall or remembering. No higher or challenging cognitive levels were presented, and the lesson was presented in an uninteresting manner. Classroom management was unacceptable because approximately two-thirds of the students were not on task, and the behavior was inappropriate for a classroom. This resulted in no learning taking place, and Respondent did not seem to make any attempt to correct the situation. Respondent was marked unacceptable in techniques of instruction because he gave a skills lesson which needed some demonstration. However, he simply gave the students materials and told them to do the work. He should have taken the time to give instructions and actually demonstrate what the students were to do. The activities that took place did not give the students an opportunity for participation and verbal interaction with Respondent. The students were not invited to raise questions and were not actively involved in the lesson. It was basically a teacher-directed lesson. The lesson that Respondent presented would have been an opportune one for using media, but Respondent chose not to do so. There was a great deal of confusion on the part of the learners -- they did not know what to do with the materials, and very little clarification took place. Respondent was marked unacceptable in assessment techniques because he did not give the students more than a book-type exercise, which was not challenging, and only required students to recall basic information. This technique did not require them to actually think or apply the knowledge they learned. In the student folders, there was only one kind of evaluation, a dittoed workbook-type of page with mostly fill-in-the-blank type activities. Respondent was marked unacceptable in teacher-student relationships because there was not any mutual respect on the part of the students or teacher. Mr. Hanson found no improvement over his prior observation of March 19, 1982. Mr. Hanson prescribed help for Respondent, and Dr. Moore concurred with those prescriptions. It was recommended that Dr. Sullivan observe a master teacher at a school close to his and that Dr. Moore, a former social studies teacher, help in demonstrating some of the techniques needed in a social studies room. Mr. Hanson provided additional reading materials for Respondent. The next formal observation of Respondent was done by Mrs. King and Mrs. Cohen on March 29, 1983. Mrs. Cohen found Respondent unacceptable in all categories, and Mrs. King found him unacceptable in all categories except teacher-student relationships. Mrs. King found that his lesson plan was much decreased in quality over her prior observation: the objectives did not reflect good planning, the activities did not fill the allotted time, and the plan was not followed. Because of these, she rated Respondent unacceptable in preparation and planning. Knowledge of the subject matter was rated unacceptable because the subject presentation was unacceptable. Information and activities were not timely and accurate, and the sequence of presentation was not logical. Interesting, unusual or important dimensions were not included, and different cognitive levels were not presented. Respondent was rated unacceptable in classroom management because many students were not on task, and behavior management was not done appropriately. Techniques of instruction was marked unacceptable because the materials that were used were inadequate for the lesson. Student participation was very minimal, and there was little, if any, discussion. Students were asked to work on information in their folders. Individual questions were asked and answered but there was no other kind of instruction taking place during the observation. Assessment techniques was marked unacceptable for there was no indication that assessment had taken place or would take place for this particular lesson. The students seemed vague as to what they were supposed to be doing. Teacher-student relationships was unacceptable because there was no attempt to involve all students in the instruction. Basically, there was no instruction. Mrs. Cohen found the same conditions that existed on her previous observation of February 16, 1982. While the method of teaching had changed, as worksheets were distributed and folders were given out, there was still no teaching occurring, there was lots of confusion, and there was little attempt to draw relationships. These things contributed to a lack of control and off task behavior. Mrs. King discussed with Respondent activities that he might use to direct the students, to establish and gain control of their behavior in the class. She recommended written assignments, discussions, and lectures, using a variety of activities that might help give direction to him and to the students in the classroom. The next formal observation was performed by Daniel McPhaul, Assistant Principal, on May 5, 1983. Mr. McPhaul found Respondent unacceptable in all categories except knowledge of subject matter. Preparation and planning was unacceptable because there were some items lacking from the lesson plans, and the lesson plan did not have objectives. Classroom management was unacceptable because there were many students who were not on task strewn about the classroom floor, the desks were out of order, and students were walking around communicating with each other while Respondent was giving instructions. Techniques of instruction was unacceptable because there was no student participation. His instructional strategies were limited. There was no use of media from the library, although some was available to him. Assessment techniques were unacceptable because the lesson ended with the ringing of the bell. There was no time allowed for assessment. He did not ask questions to see if the students understood the lesson and did not evaluate the students. Respondent was found unacceptable in teacher-student relationships because if the students were interested in receiving instructions from Respondent, they would not have been playing around and communicating with each other. Mr. McPhaul suggested that Respondent get the students on task as soon as possible. One way to do this is to have handouts or pop quizzes ready at the beginning of the class. He also suggested that Respondent communicate with parents. He suggested that the students be made to clean the classroom before leaving. On May 25, 1983, Dr. Moore dropped in to visit Respondent because of a teacher's complaint. When he got there, there were several students running out of the door. Respondent indicate that no lesson was in progress, and the students were running around because there was nothing to do. The next formal observation was performed by Dr. Moore on June 1, 1983. There was no improvement: the class was noisy and off task; the lesson did not match the lesson plan; the lesson was not attended to by most of the students; many students talked while Respondent gave instructions; and nineteen out of twenty students did not follow directions. Further, since Respondent was using an inappropriate teaching technique for a fact recall level lesson, five students did nothing, fourteen students wrote statements totally unrelated to the unit they were studying, and only one student wrote one question pertinent to the unit under study. Seven weeks into the nine-week grading period, there were no grades recorded in the grade book. Based on this there would be no way to know what a student had done or how well. There were no codes in the front of the grade book to interpret the grades. There was no basis to explain a child's grade to a parent. Dr. Moore gave Respondent copies of his summatives on or about November 12, 1982, December 17, 1982, February 10, 1983, April 11, 1983, and May 1, 1983. A summative combines the preceding two classroom observations and rates a teacher overall acceptable or unacceptable at any point in the process. All of Respondent's summatives were rated overall unacceptable. Respondent was offered help at other times as well. The assistant principal had conferences with parents of disruptive students. Mrs. Parker taught directly across the hall from Respondent and observed that at times students were completely out of control, with desks and books being thrown across the room. Respondent asked her for help, and she suggested methods of control. There was so much noise coming from Respondent's room that Mrs. Parker would put her stool in the doorway and sit there and control both her class and Respondent's class at the same time. Mrs. Griswold, Respondent's department head, taught across the hall from Respondent. At times she noted the chaos. Quite frequently the students would be talkative and on occasions they would be walking around. The noise interfered with her class to the point that she would have to close her door. She offered to help Respondent by meeting with him on several occasions to discuss lesson plans, methods of controlling students, and using different techniques. She gave him materials to help him. During the 1981-82 school year, she met frequently, on a weekly basis, to go over Respondent's lesson plans. During some time periods, Respondent's lesson plans were more than adequate; at other times, they were not adequate. During the 1981-82, Respondent was told by Dr. Moore to submit lesson plans to Mrs. Griswold. He did not always comply. When he did , Mrs. Griswold went over his lesson plans with him, checking to make sure that the materials that he was using were applicable to the students in his class. She checked to be sure he was following the course outline for social studies for seventh graders. She tried to aid him in any way she could to try to maintain discipline and control in his class. On January 28, 1982, Assistant Principal Marshall gave Respondent a memorandum which dealt with tips for teaching. Mr. Marshall then monitored Respondent with informal observations two to three times a week to see whether Respondent was utilizing the suggestions made to him. The assistant principals had to enter Respondent's room at numerous times to gain control of or restore order to the classroom. Fellow teacher Beverly Dunbar also went into Respondent's room to restore control to his class. She observed that the children were so noisy that her own students could not do their work. When she went into Respondent's room, almost all of the students in the room were out of their seats, throwing papers, books, and throwing over desks. Respondent was standing there, not saying anything to them. They were out of control. On February 5, 1982, Respondent's room was changed to the first floor so that he could be closer to the administrative offices and to relieve the classes which had been around Respondent's classroom. The assistant principals were directed to assist Respondent whenever needed to restore order to his class when it was out of control. The assistant principals removed youngsters from Respondent's classroom and offered to take others out. Mr. Villar had a conference with Respondent to set up classroom rules for him and offered suggestions on the use of a seating chart to take attendance quickly and to become familiar with where students were sitting and to notice patterns in behavior that may become disruptive. Mr. Villar tried several times to talk to Respondent about his problems, but Respondent was not responsive. Mr. Villar also suggested that Respondent observe teachers in their school and in other schools in the same academic areas. He also recommended that Mrs. Griswold assist Respondent on lesson plans, ordering materials, and making sure he had a complete set of classroom textbooks. Mrs. King had conferences with Respondent. She called these her "lay-it-on-the-line" conversations. These dealt with how to get control of the students and force them through classroom activities through discipline measures, to do what they are supposed to be doing. She gave very specific recommendations such as moving certain students and specific kinds of activities that would keep the students involved. One day she went into Respondent's class and began the class for him to show how it could be done and how students could be controlled through various methods. Dr. Moore invited Mr. Hanson, the social studies supervisor, to observe Respondent's class and make recommendations to help the situation. At one point, when the principal observed Respondent's class, the room was so noisy and the students were so off task that he suggested that Respondent work with the students regarding the necessity of self control and following directions. He further recommended that Respondent work with Assistant Principal Villar to arrange for any kind of backup he would need. Dr. Moore also gave education articles to Respondent to read. The principal followed through and arranged for observations of other teachers by Respondent. Respondent was given an opportunity to raise any questions that he had about the type of support he needed. He was given an opportunity to give the administration feedback of the things they were not doing that he would like them to do for him. Dr. Moore compiled a composite record of all the prescriptions that had been given to Respondent in order that Respondent could review them and did a demonstration lesson for Respondent as an example showing the use of techniques which were explained in the readings that were given to Respondent. In spite of all the help that was given, Respondent's class continued to interfere with other teachers' classes. Mr. May testified that the noise was so loud that his students could not hear him dictating a spelling test during a semester examination. Mr. May saw things thrown through the room, such as books, and saw students out of their chairs and totally out of control. He heard glass breaking and saw glass on the ledges of the second floor. He was also afraid that some child would go out a second floor window and recommended to Dr. Moore that Respondent's class be changed to the ground floor. There was no improvement in the control of Respondent's class after he was moved to the first floor. On the occasion that Mrs. Dunbar went up to gain control of Respondent's class, her students were prevented from doing their work by the noise coming from Respondent's room. Other teachers in Mrs. Dunbar's department complained to her, and teachers complained to the assistant principals about the noise in Respondent's room. During informal observations, Respondent fared no better than he did no his formal observations. His class was generally disorganized with 100% of the time being spent without teachings. When Mrs. Dunbar observed Respondent, he was not teaching. There was commotion going on. At times, clapping and chanting could be heard coming from Respondent's room across the courtyard. The administrators received more student and parent complaints about Respondent's class than they did about other teacher's classes. When Mrs. King walked by the halls, she would come in to help establish order in Respondent's class. Sometimes she would be sent for by Respondent or by a student or other teachers. Very often she notices that there was chaos in the classroom with students moving around without inhibition. They were talking, tossing paper, and off task. They were not involved in any kind of constructive classroom activity, and the noise level was very high. On Mrs. Cohen's informal visits to the school, she observed Dr. Moore going into Respondent's room to quiet it because someone had thrown paper outside the room. It was the consensus of opinion of the experts who observed Respondent in the classroom that there was a repeated failure on his part to communicate with and relate to the children in his classroom to such an extent that they were deprived of a minimal educational experience. Respondent has not maintained direction and discipline of students as assigned by the principal and has not kept good order in the classroom. He has not taken precautions to protect the life, health and safety of every student. On one occasion Mr. Marshall had to respond to the Respondent's classroom because of the presence of a railroad spike in the possession of one of the students. Because of the gravity of the situation, the parents of the student were contacted and additional documentation was forwarded to Dr. Moore. During the 1982-83 school year, Assistant Principal King walked by the Respondent's class and observed a student holding a chair up in the air "as if in the intent of throwing it at another student." Another time she observed a student on all fours crawling along a back counter. On those occasions Respondent was standing in the front of the class, simply observing and doing nothing to (re)gain control of the class. During the 1982-83 school year, on several occasions jalousie windows were broken in Respondent's classroom by students playing and bumping into each other. Some students complained to Assistant Principal McPhaul about the noise level and disorder in Respondent's class and the difficulty they had in doing their work due to harassment by other students who wanted to play during class. Overall, during the last two years of Respondent's service, in the 1981-82 and 1982-83 school years, Respondent failed to achieve an acceptable performance rating as determined by eight formal evaluations during the 1981-82 school year, done by five different evaluators, two of which were external to the work site. In the 1982-83 school year, Respondent failed to achieve an acceptable performance rating as noted on nine different formal evaluations conducted by six different evaluators, two of which were external to the school site. The administrators asked Respondent whether there were any health conditions or medical conditions which should be considered in his case. Respondent stated that health was not a factor in his classroom observations. Neither Respondent nor his wife ever communicated to the administrators that there was a health problem that interfered with Respondent's teaching. After his suspension by the School Board, Respondent was examined psychologically and was found to have an inability to organize his social events into a meaningful order. His perceptual abilities are significantly below his age level, and his functioning is significantly below what one would expect given Respondent's level of education and teaching experience. He has extreme difficulty in differentiating relevant versus nonrelevant aspects in his environment. His thinking is highly concrete, and he is unable to coordinate data and integrate them into meaningful concepts. Respondent is verbose and uses circular reasoning to eventually reach a final conclusion. Respondent's examining psychologist determined that it would be difficult for Respondent to learn new techniques for getting a class into order, it would be difficult for him to learn new ways of doing lesson plans in order to structure his classroom activities, he would have a hard time working in a school organization where he had to perceive social situations and what is going on in a classroom, he would have a difficult time dealing with teachers, administrators, and students, and he would have a hard time perceiving the motives of the administration. His perceptions are vague and amorphous, and descriptive in nature. He has inordinate difficulties in capturing the essence of what was presented to him. While there is no evidence of thought disorder, his thinking is vague, disorganized, fuzzy, and reflective of an individual with possible organic factors interfering with his thinking and organizational abilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that a Final Order be entered in Case No. 83-2649 finding Respondent guilty of the allegations contained in the Specific Notice of Charges filed against him, affirming his suspension, dismissing him from his employment, and denying him any claim for back pay. It is further RECOMMENDED that a Final Order be entered in Case No. 83-3793 finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and permanently revoking Respondent's Florida Teacher's Certificate No. 112370. DONE AND ENTERED this 3rd day of January 1985 in Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of January 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig Wilson, Esquire 315 Third Street West Palm Beach, Florida 33401 George F. Knox, Esquire Penthouse 200 Southeast First Street Miami, Florida 33129 Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County School Board 1410 Northeast Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER (DADE COUNTY SCHOOL BOARD) ================================================================= SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner, vs. CASE NO. 83-2649 WILLIAM D. SULLIVAN, Respondent. /
The Issue The issues in this case concern whether the Petitioner may lawfully terminate the Respondent's employment as a teacher by reason of alleged acts of misconduct set forth in an Administrative Complaint.
Findings Of Fact At all times material to this case, Ms. Engar Dennard (the Respondent) was employed as a teacher by the Palm Beach County School Board (the Petitioner). During the 1999/2000 school year, the Respondent was an Emotionally Handicapped (EH) teacher at H. L. Watkins Middle School until she was reassigned on January 6, 2000, pending an investigation. During the 1999/2000 school year, M. M.2 was a seventh grade student at H. L. Watkins Middle School. M. M. was a student in the Respondent's classroom for one period each day. Prior to December 17, 1999, M. M. had not created any behavior problems in the Respondent's classroom, although the Respondent knew that he was sometimes a behavior problem in the classrooms of other teachers. On Friday, December 17, 1999, M. M. misbehaved in the presence of the Respondent. While outside on the school grounds, M. M. made several inappropriate, vulgar, and offensive remarks to a girl who was passing by. Another student told M. M. that he should not use that type of language in the presence of the Respondent. M. M. replied by saying, "Fuck her." The Respondent promptly reported M. M.'s conduct to a Crisis Intervention Teacher (CIT) who was nearby.3 The CIT interviewed and redirected M. M. On Monday, December 20, 1999, M. M. and several other students were approximately ten minutes late for class because another teacher had kept them in class longer than usual. The Respondent told all of the late students, including M. M., that, because they were late, they had to get a pass before they could come into her class. With the exception of M. M., all of the late students left, presumably to obtain the necessary pass. M. M. remained and began to address the Respondent in terms that were confrontational, vulgar, offensive, and obscene.4 The Respondent brought this tirade to an end by closing and locking the classroom door with M. M. on the outside. A moment later, another teacher arrived and explained why the students had been late. The Respondent allowed all of the late students, including M. M., to enter her classroom. M. M. did not engage in any further misconduct on December 20, 1999. The Respondent did not write a referral about M. M.'s misconduct on December 20, 1999, because use of inappropriate language was a manifestation of one of M. M.'s handicaps and was an issue targeted in his Individualized Educational Plan (IEP). On December 21, 1999, M. M. arrived at the Respondent's classroom approximately twenty minutes late. All of the other students were engaged in taking a final exam. M. M. entered the classroom quietly, took a seat, and began taking the final exam. Moments later, M. M. began to disturb the class by talking to other students. The Respondent asked him to be quiet, and he complied, but only for a moment. When M. M. again disturbed the class by talking, the Respondent told him that if he could not be quiet, he would have to leave the classroom. In response to the Respondent's admonition, M. M. used confrontational, vulgar, and offensive language to tell the Respondent that she could not tell him what to do.5 At this point the Respondent became upset and embarked on a series of inappropriate overreactions to M. M.'s misbehavior. The Respondent began walking towards M. M. and M. M., concerned about what she might do to him, stood up from his desk and began backing away from his desk and from the Respondent. When the Respondent reached the desk that was between her and M. M., she violently shoved the desk to one side, causing the desk to fall over on its side. When the Respondent knocked over the desk, M. M. shouted "fuck you" and ran out of the classroom. The Respondent ran out after him. M. M. ran directly to the nearby office of the CIT, Curtis White. As M. M. ran to the back of Mr. White's office, he shouted, "Mr. White, get that lady!" Before Mr. White could figure out what was happening, the Respondent rushed into his office and headed straight for M. M. As the Respondent approached, M. M. backed up as far as he could until he was against a row of boxes stacked against the wall. The Respondent pushed M. M. back against the row of boxes and then grabbed his shirt with one hand and kept him pressed against the boxes while she slapped him in the face three times with her other hand. When the Respondent pushed and slapped M. M., he was shouting vulgar and offensive things to her, but his hands were down by his sides and he did not attempt to push or hit the Respondent. Immediately after the Respondent slapped M. M., another student in the CIT office grabbed the Respondent and began pulling her away from M. M. The Respondent turned and began to leave the CIT office. At that point, M. M. balled up his fists and it appeared that he might attempt to hit the Respondent. Yet another student grabbed M. M. and restrained him from following the Respondent. During the course of the events in the CIT office described above, M. M. and the Respondent were offensive and confrontational to each other. The Respondent's remarks to M. M. included, "Don't you ever fucking call me that again." The Respondent also told M. M. that she would "beat his ass" if he did not stop saying offensive things to her. The Respondent also said to M. M., "Boy, you don't know who you're messing with! I'll kill your ass!" On at least two prior occasions the Respondent has lost control and engaged in inappropriate conduct directed towards students. In 1999, the Respondent received a five-day suspension without pay for inappropriate physical contact with a student. The inappropriate contact on this occasion was grabbing a student by the face when the student misbehaved in a car. Later in 1999, the Respondent received a verbal reprimand with a written notation for throwing water on a student and calling the student a "faggot." Among the consequences of the Respondent's conduct on December 21, 1999, is the notoriety which resulted from publication of information about the incident in a local newspaper. M. M. cried as a result of the incident and was reluctant to return to school. At least one student who witnessed the events in the CIT office was worried that in the future a teacher might strike him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order terminating the Respondent's employment and denying all relief sought by the Respondent. DONE AND ENTERED this 14th day of December, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2000.
The Issue The issues in this case are: (1) whether Respondent failed to correct performance deficiencies, thereby justifying termination of her employment as a teacher pursuant to section 1012.34; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
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 teacher in the Miami-Dade County Public School District pursuant to a professional services contract. Respondent has been a teacher for approximately 14 years. She began teaching full-time at Gulfstream in the 2004- 2005 school year. During her years at Gulfstream, she taught fifth, third, and second grades, and in the 2010-2011 school year she was a co-teacher assigned to assist other teachers in instructing their students. In the 2011-2012 school year, and in the 2012-2013 school year until she was suspended pending the outcome of this proceeding, Respondent was a first grade teacher at Gulfstream. 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. The Events Giving Rise to this Proceeding Section 1012.34(3), Florida Statutes, mandates that instructional personnel, including classroom teachers, be evaluated for performance at least once a year. Pursuant to section 1012.34(3), the performance evaluation consists of two components: a student performance component and an instructional practice component. The former is based on student scores on the Florida Comprehensive Assessment Test ("FCAT"), or, for subjects and grade levels not measured by the FCAT, on school district assessments as provided in section 1008.22(8). The latter is based on instructional performance indicators that are evaluated based in part on classroom teaching observations. 2011-2012 School Year March 27, 2012 Evaluation In the 2011-2012 school year, approximately 17 students were assigned to Respondent's first grade class. Pursuant to section 1012.34(3)(a)2., in connection with Respondent's annual evaluation, Gulfstream Principal Concepcion Santana conducted a formal observation of Respondent's instructional practices in her classroom on March 27, 2012, as she taught reading/language arts. She observed Respondent for 40 minutes. In evaluating Respondent, Santana followed the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used throughout the Miami-Dade County Public School District to evaluate instructional personnel. IPEGS consists of eight performance standards that constitute the minimum standards a teacher must meet in classroom instruction. These standards are based on the Florida Educator Accomplished Practices adopted by the State Board of Education, as required by section 1012.34(3)(a)2. Four of the IPEGS performance standards are observable during the classroom instruction portion of the evaluation. The other four are "not observable," meaning that they target performance standards that may not necessarily be observed at the time of the classroom instruction performance evaluation.1/ Santana found that Respondent's instructional practices were deficient with respect to the four observable performance standards ("PS"): Knowledge of Learners (PS 2), Instructional Planning (PS 3), Instructional Delivery and Engagement (PS 4), and Learning Environment (PS 8). PS 2 requires the teacher to identify and address the needs of learners by demonstrating respect for individual differences, cultures, backgrounds, and learning styles. Santana observed that Respondent failed to meet PS 2. Specifically, Respondent did not tailor her teaching to address the various learning styles and levels of the students in her classroom; rather, she presented the lesson in a manner that addressed only one learning level, so that some of the students were not learning. PS 3 requires the teacher to use appropriate curricula, instructional strategies, and resources to develop lesson plans that include goals and/or objectives, learning activities, assessment of student learning, and home learning in order to address the diverse needs of students. Respondent failed to meet PS 3. The activities she conducted did not directly conform to her written lesson plan. Specifically, the students were reading a story that was not identified on the lesson plan, and completing workbook pages that were not identified in the lesson plan while skipping others that were identified in the plan. As a result, the focus and purpose of the lesson being taught was not addressed in the lesson plan. Additionally, the lesson plan did not incorporate multiple instructional strategies to meet the learning needs of all of the students. Respondent failed to use a variety of resources and questioning techniques to cater to the range of learning styles and levels of her students and encourage higher level thinking; rather, the instruction presented that day catered to rote learning. PS 4 requires the teacher to promote learning by demonstrating accurate content knowledge and by addressing academic needs through a variety of appropriate instructional strategies and technologies that engage learners. Respondent also failed to meet PS 4. She did not deliver the instruction at a pace appropriate to engage all students. Additionally, her instructional delivery failed to incorporate a range of strategies so that again, not all students were engaged in the lesson. As a result, many students were off-task, and frequent interruptions distracted students who otherwise were on-task. PS 8 requires the teacher to create and maintain a safe learning environment while encouraging fairness, respect, and enthusiasm. Respondent failed to meet PS 8. Santana noted that there appeared to be little evidence of specified classroom procedures that the students understood and followed, so as to create an environment conducive to learning. As a result, students were up out of their seats, asking to go to the restroom, and fiddling with their papers and pencils. Following the observation, Santana documented her observations on a form titled "IPEGS Observation Standards Form- Teacher" ("IPEGS Form"). In compliance with section 1012.34(3)(c), Santana notified Respondent in writing of a scheduled support dialogue meeting. The purpose of the support dialogue meeting was to provide feedback regarding the classroom observation and to discuss strategies and supportive actions that could be provided to Respondent to assist her in remediating her deficiencies and improving her instructional performance. Santana's support dialogue meeting with Respondent took place on March 29, 2012. Present at the meeting, in addition to Santana and Respondent were a UTD representative; a reading coach, Mariela Rapp; and an assistant principal. Santana provided the completed IPEGS form for the March 27 classroom observation to Respondent and discussed with her the observed deficiencies, including instructional strategies that she could have incorporated into the lesson to make it more effective. Rapp and another reading coach, Lynn Carrier, were assigned to provide support to Respondent, and strategies to assist her were devised. Respondent was informed that she had 21 days in which to implement the actions prescribed in the support dialogue meeting, and that at the end of that period, Santana would conduct another classroom observation. April 25, 2012 Evaluation Santana conducted another formal classroom observation of Respondent's teaching on April 25, 2012. This time, she observed Respondent for the entire reading/language arts instructional block lasting two hours. Respondent did not meet PS 2. Again, she did not incorporate instructional strategies to cater to the learning styles and levels of all students in her class. Santana noted that Respondent's instructional performance on this standard was very similar to that she had observed on March 27, 2012. Respondent also failed to meet PS 3. Specifically, she did not incorporate a variety of instructional strategies in her lesson plans to meet the varied needs of the students in the class. As a result, she failed to address the diverse learning needs of her students as required by PS 3. Similarly, Respondent failed to meet PS 4. Once again, Respondent's instructional delivery and engagement techniques failed to keep many students on-task. Santana attributed that to Respondent's failure to adequately pace the lesson or to effectively provide differentiated learning experiences to meet the students' varied learning styles and levels. Santana further noted that the lesson was disorganized. Respondent created differentiated learning centers at which the students would engage in various learning activities; however, she provided no guidance, so the students were unable to effectively engage in the activities for which the centers were prepared. Specifically, at the computer-based learning center, the computers were not prepared for the instructional activity, so time was wasted logging onto the computers; consequently, the students had little time to work on the activity. At another learning center involving a device called "Leap Pad," the books and accompanying cassette cartridges were not grouped together, so the students spent time trying to find the matching books and cartridges and, as a result, wasted what was supposed to be instructional time. Because of these problems, students repeatedly interrupted the teacher-led instructional center, interfering with learning at that center. Respondent again failed to meet PS 8. Respondent's failure to establish classroom procedures for the various learning centers and her lack of success in redirecting off-task students to reengage in the assigned learning activities created a disruptive environment that did not promote student learning. Following the April 25, 2012, observation, Santana completed another IPEGS Form. Because Respondent showed no improvement from the March 27, 2012, observation, Santana scheduled a conference for the record ("CFR"). A CFR is a formal meeting to discuss a teacher's performance deficiencies and develop a plan to remediate those deficiencies. Respondent was notified in writing of the CFR, which was rescheduled per Respondent's request. Respondent attended the meeting with two UTD representatives; also attending were Rapp and an assistant principal. By written notice and at the CFR, Respondent was informed that she was being placed on 90-day performance probation, pursuant to section 1012.34(4), as of the date of the CFR. An IPEGS Improvement Plan ("IP") was developed to assist Respondent in remediating her instructional performance deficiencies. An IP is a written document that discusses each performance deficiency; identifies specific resources available to assist the teacher in remediating each specific deficiency; sets forth remedial activities specific to each deficiency in which the teacher and assisting persons are to engage; and establishes deadlines for completing the specified activities. In the IP, Respondent and reading coaches Rapp and Carrier were directed to work collaboratively to improve Respondent's instructional techniques and pacing so as to engage all students in the lessons. To this end, Rapp and Carrier were to assist Respondent in developing lesson plans and identifying instructional strategies and activities to meet the learning needs of all of her students. Additionally, Respondent was given the opportunity to engage in collaborative planning with her peer professionals (i.e., other first grade teachers) and with the reading coaches. She also was provided access to a nationally board certified teacher at Gulfstream who assists teachers in improving their teaching performance. The IP further directed the reading coaches and peer professionals to observe Respondent and provide constructive feedback and assistance to Respondent as she attempted to implement instructional techniques and strategies. The IP also identified Common Core Standards, reading/language arts pacing guides, and reading/language arts planners as resources available to assist her in developing appropriate planning objectives, appropriately pacing her lessons to address her students' needs, and developing her lesson plans. As part of the IP, Santana directed Respondent to prepare a written plan addressing how she would tailor her instruction to address student learning styles; use appropriate instructional materials and techniques; and use differentiated instructional groups and learning centers. The written plan was to be submitted to Santana by May 29, 2012. Respondent was further directed to develop lesson plans to improve her instructional delivery strategies. Those plans were to be submitted to the assistant principal. The IP directed Respondent to read the book "How to be an Effective Teacher: The First Five Days of School" and to submit to an assistant principal a reflective summary discussing effective strategies for addressing inappropriate student behavior and managing the learning environment. Respondent also was directed to consult with the reading coaches and peers to develop effective strategies for redirecting inappropriate student behavior. To assist Respondent in implementing her IP, Santana prepared a support calendar that detailed, on a weekly basis for a 21-day period, the activities in which Respondent was to engage. The support calendar specifically identified the reading coaches, peers, and other professionals responsible for working with Respondent as she performed the assigned activities. During the first week of the IP implementation period, Rapp provided assistance to Respondent in planning for the reading/language arts instructional block that would be conducted the following week. Respondent worked with Rapp to interpret current Florida Assessments for Instruction in Reading ("FAIR") testing data and use the data to effectively plan for differentiated instruction. Also during the first week, Respondent observed reading/language arts instruction in a peer's classroom and participated in a debriefing session with Rapp and Carrier after the peer teaching observation. The following week, Respondent participated in an activity cycle during which she collaboratively planned with reading coaches Rapp and Carrier; observed peers teaching reading/language arts; observed Rapp modeling effective reading/language arts teaching strategies and techniques; co- taught reading/language arts with Rapp to practice these strategies and techniques; and taught the reading/language arts block while being observed by Rapp and Carrier. This same activity cycle, consisting of collaborative planning,2/ reading coach and peer modeling and observation, co- teaching, and teaching by Respondent, was repeated in the final week of the IP implementation period. Collectively, these activities were designed to assist Respondent in planning for the use of content and instructional techniques and strategies appropriate for her students. They also demonstrated to Respondent how to identify and implement effective instructional techniques and strategies, provided assistance as she learned to implement these techniques and strategies, and afforded the opportunity for Respondent to benefit from constructive feedback regarding her efforts to utilize these techniques and strategies. On May 16 and May 24, 2012, Rapp and Carrier observed Respondent as she taught a reading/arts lesson. In the lesson, she was to employ the instructional techniques and strategies that had been provided and presented to her by the reading coaches, peer professionals, and reference resources during the implementation of her IP. According to Carrier, Respondent did not adhere to the prepared lesson plan and did not incorporate the techniques and strategies that had been provided to her by the reading coaches and peer teachers through her IP.3/ Shortly after Respondent completed the activities set forth in the IP, the 2011-2012 school year ended. Condition of Respondent's Classroom in 2011-2012 At the beginning of the 2011-2012 school year, Respondent had been assigned to a free-standing portable classroom not located in the main building at Gulfstream. In late September or early October 2011, Respondent complained to Santana about the air quality in her classroom—— specifically, that there was musty smell that made it difficult for her to breathe and aggravated her allergies. Santana contacted Mr. Cruz-Munoz of the Miami-Dade Public Schools asbestos management division to inspect Respondent's classroom. Within a couple of days, Cruz-Munoz conducted the inspection and found no visible mold or mildew. He noted that the musty smell was typical of portables, like Respondent's classroom, that were older and had wood paneling. He noted that although the room generally was clean, it contained many boxes and a large amount of clutter, both of which may attract dust. He recommended that the boxes and clutter be kept to a minimum to prevent dust collection. Within a week, Respondent's classroom was thoroughly cleaned by a maintenance crew. After the classroom was cleaned, Respondent complained to Santana that she noticed a cleaner smell. Santana contacted Cruz-Munoz, who assured her that the cleaners were water-based and did not contain allergens. Santana informed Respondent of this and suggested that the cleaner smell would dissipate over time. In January 2012, Respondent again complained to Santana about the smell of the classroom and that it was aggravating her allergies. Santana again contacted Cruz-Munoz, who arranged another inspection of the classroom. The inspector again reported that the classroom generally was clean and free of visible mold and mildew but contained many boxes; again, the importance of minimizing the number of boxes and clutter so as to avoid collecting dust was stressed. At that point, Santana referred Respondent to workers' compensation so that she could obtain medical attention to address her health issues. At some point in January 2012, Respondent contacted Robert Kalinsky, a regional director with the Miami-Dade Public School system, regarding the air quality and odors in her classroom. Kalinsky was one of Santana's supervisors at the time. Kalinsky notified Santana that Respondent had contacted him and that he also had received a call about about the condition of the classroom from a member of the Miami-Dade County School Board. As a result, Kalinsky paid a visit to Gulfstream. On February 7, 2012, Santana met with Respondent and an assistant principal regarding a number of issues, including the condition of Respondent's classroom. At that meeting, Santana noted that during the recent visit by Kalinsky and personnel who inspected the classroom, the room was observed cluttered with piles of paper on the desk and many other areas, and that there numerous boxes. At the meeting, Santana reminded Respondent regarding many other issues, including those related to classroom and school library procedures and instructional delivery. Effective February 7, 2012, Santana reassigned Respondent to a different classroom that was located in the main building at Gulfstream. Thereafter, Respondent did not have any complaints about the air quality or odors in the classroom to which she had been assigned. She did continue to complain about the odor of air fresheners and scented candles used throughout the school. Santana noted that she regularly dealt with issues similar to those raised by Respondent because she received frequent complaints from teachers regarding the air quality, mold, and odors at Gulfstream due to the school building's advanced age. Santana credibly testified that she never, at any point, became angry with Respondent regarding her concerns about the air quality and odor in the portable classroom, or any actions Respondent that had taken to address those concerns. 2012-2013 School Year Pursuant to section 1012.34(4)(b)1., school vacation periods are not counted as part of the 90-day performance probation period. Accordingly, Respondent's probation period carried over from the end of the 2011-2012 school year to the 2012-2013 school year. When the 2012-2013 school year commenced, her 90-day probation period continued. September 12, 2012 Evaluation On September 12, 2012, Santana formally observed Respondent's classroom teaching for the third time. She observed Respondent for the full duration of the reading/language arts block, approximately two hours. Respondent again failed to meet PS 2. Her instruction did not incorporate techniques and strategies to address the various learning styles and levels of the students in her class. As a result, many students were bored; one student was observed with his head on his desk. Other students attempted, unsuccessfully, to get Respondent's attention to answer questions they had. Respondent was unsuccessful in explaining the small group activities so that several students were off- task. By the time Respondent redirected the off-task students, little time was left for them to engage in the planned activities. Santana observed no improvement in Respondent's performance on this standard when compared to the two previous observations. Likewise, Respondent failed to meet PS 3. She did not develop or present a lesson that addressed logical, sequential goals and objectives and she did not cover the material identified in the lesson plan. Once again, she failed to use differentiated instructional techniques and strategies to address the students' individual learning styles. The lesson was directed only at one skill level and one learning style. Worksheet activities were completed by the entire class, with some students calling out the answers while the others copied those answers on the worksheet. The partner reading portion of the exercise was disorganized and the students were not given adequate direction, so that many students did not understand how the activity was to be conducted. Santana did not observe any improvement in Respondent's performance on this standard. Respondent also failed to meet PS 4. Her teaching did not include activities directed at eliciting higher order thinking, so did not engage all of the students. Several students were overheard saying they were bored, had already read the material, or already knew the concepts being presented. Other students were off-task, reading stories that had not been assigned. When students were assigned to small groups, insufficient direction was given so that many students did not understand what they were to be doing. In particular, the lack of organization with respect to the computer-based portion of the lesson resulted in students wasting a substantial amount of time before being re-directed to the assigned task. Santana did not observe any improvement in Respondent's performance on this standard. Respondent again failed to meet PS 8. Santana noted that the learning environment and activities were not academically challenging and did not engage all of the students. Students were not given adequate instruction on the activities in which they were to be participating. In particular, the partner reading portion of the exercise was disorganized and many students did not understand how the activity was to be conducted. Santana did not observe any improvement in Respondent's performance on this standard. Following the September 12 evaluation, Santana completed the IPEGS Form, conducted another performance review with Respondent, and issued another IP for her on September 18, 2012. Once again, the reading coaches and peer professionals were made available to assist Respondent in implementing the IP. The Common Core Standards, reading/language arts pacing guides, and reading/language arts planners also were resources to which Respondent was referred. The activities in which Respondent was directed to engage to correct her performance deficiencies for PS 2 and PS 3 were very similar to those identified her May 7, 2012 IP. With the new school year, Respondent had a new class of students, and Santana emphasized the importance of Respondent being able to assess those students' learning styles and levels and to plan how she would assign them to instructional groups. Respondent was directed to prepare and submit to the assistant principal weekly lesson plans containing goals, objectives, activities, and strategies to provide instruction aimed at the her students' diverse learning styles and levels. To help Respondent correct her PS 4 deficiencies, the IP emphasized that Respondent was to observe the reading coach (Carrier) and her peers as they modeled effective instructional techniques and activities designed to reach diverse student learning styles and levels. To correct her PS 8 performance deficiencies, Respondent was directed to work with the reading coach and peers to establish a plan for effective classroom procedures, to prepare a written summary of the plan, and to provide the summary to the assistant principal. Additionally, Respondent was directed to observe peer professionals as they taught; to prepare and provide to the assistant principal a list of the effective teaching techniques she observed; and to incorporate three of those techniques into her classroom teaching. She also was directed to maintain a log of teaching techniques she used in her class, with discussion of which techniques were effective or ineffective and why. The log was to be provided to and discussed with Carrier, so that Carrier could assist Respondent in developing and implementing successful classroom techniques and procedures. Again to ensure that everyone involved in implementing Respondent's IP understood their roles and responsibilities, Santana established another 21-day support calendar detailing the specific activities to be conducted on specific days. The activities entailed collaborative planning with Respondent, Carrier, and grade level peers; Respondent working with Carrier and peers to develop small group and differentiated instructional teaching techniques; Respondent's observation of grade level peer teaching and post-observation debriefing regarding instructional best practices; and Respondent's implementation of those best practices in her teaching, to be observed by Carrier, with feedback provided. Respondent engaged in all scheduled activities and timely completed the September 18, 2013, IP. October 11, 2012 Evaluation On October 11, 2012, a fourth formal classroom observation of Respondent was conducted, this time by assistant principal Marybel Baldessari. Baldessari observed Respondent teaching reading/language arts for an hour and a half. Once again Respondent failed to meet PS 2, 3, 4, and 8. With respect to PS 2, Respondent again failed to present differentiated instruction that targeted individual student learning styles and levels; as before, her instruction was aimed only at one learning style and level. With respect to PS 3, Respondent did not ensure that materials were properly organized to accommodate assistance by an interventionist who was working with her that day. As a result, the lesson was disorganized and the lesson was not presented in a logical, sequential manner. With respect to PS 4, again Respondent's instruction was not tailored to meet the students' individual learning styles and levels. Respondent did not appropriately pace the lesson and did not employ teaching techniques, such as appropriate questioning, to encourage students' critical thinking. Respondent again failed to meet PS 8. Students were off-task; in particular, one was off-task for the entire observation period without ever being redirected to the assigned activity. Respondent also had implemented a behavior plan in the classroom involving colored cards, so that when a student was disciplined, he or she was sent to a "behavior wall" to turn over a card on the behavior chart. On this day, a student who was sent to the behavior chart found his card already turned over from the previous day. This evidenced Respondent's lack of attention to detail in maintaining a classroom environment conducive to appropriate student behavior. Baldessari documented Respondent's deficiencies from the October 11, 2012, observation on the IPEGS Form. Santana scheduled a meeting with Respondent on October 17, 2012, to discuss Baldessari's observations. At the meeting, Respondent was given yet another IP. With respect to remedying Respondent's PS 2 performance deficiencies, Respondent was given the same support resources. Respondent was again directed to meet with Carrier and grade level peer professionals to develop differentiated instructional activities and techniques, to incorporate those activities and techniques into lesson plans, and to provide those lesson plans to Baldessari. Respondent also was directed to meet with Carrier and peers to analyze test and observational data, and to use the information gleaned from that data to plan for differentiated instruction based on individual student learning styles and levels. To remedy her PS 3 deficiencies, Respondent was again referred to Carrier and peer professionals, the Common Core Standards, reading/language arts pacing guides, and reading/language arts reading planners. She was again directed to work with Carrier to develop appropriate lesson plans incorporating appropriate instructional strategies. These plans were to identify appropriate goals, objectives, activities, and instructional strategies and were to be provided to Baldessari. Respondent was assigned to read the book, "Understanding Common Core Standards," and to discuss those standards with Carrier and provide a written summary to Baldessari. With respect to PS 4, Respondent was referred to the same remedial resources as for PS 3. Respondent was directed to work with Carrier and selected peer professionals, who would assist her with planning and developing instructional techniques and strategies to appropriately pace lessons and engage all students. With respect to PS 8, Respondent was directed to work with a special education program ("SPED") specialist to develop effective classroom management procedures. She was assigned to prepare and submit a written summary of these procedures to Baldessari. She also was directed to observe peers, identify effective teaching techniques they used to maintain an academically stimulating and challenging environment, submit a list of those techniques to Baldessari, and incorporate three of those techniques into her teaching. Once again, she was directed to maintain a log listing instructional techniques she used, with discussion of which were effective or ineffective and why. The log was to be provided to and discussed with the Carrier so that she could assist Respondent in developing successful classroom techniques and procedures. Those techniques were to be implemented in Respondent's classroom teaching. Santana developed another support calendar to implement Respondent's latest IP. The support calendar identified activities in which Respondent was to engage with Carrier and the SPED specialist; scheduled time for Respondent to observe and discuss peer teaching techniques; and scheduled collaborative planning sessions in which Respondent, Carrier, and grade level peers were to address the development of differentiated instructional strategies. Carrier worked closely with Respondent to implement the October 17, 2012, IP. In doing so, Carrier demonstrated to Respondent how to incorporate certain instructional techniques into her teaching to better engage the students and enhance their learning experience.4/ Carrier stressed the importance of organization and preparation before the lesson in order for the instructional techniques to be effective. Carrier and Respondent also practiced the use of the instructional techniques. However, when it was time for Respondent to teach the lesson, she was disorganized and unprepared, resulting in a substantial amount of time being wasted on logistical matters, such as having essential materials on hand and ready for use, that should have been addressed before the lesson commenced.5/ Carrier also discussed with Respondent the importance of moving around the classroom to keep students focused and on- task. Nonetheless, Carrier observed that Respondent spent most of her time sitting in a chair in front of the classroom. The chair did have wheels, so occasionally Respondent would roll down the center isle of the classroom.6/ During her time in working with Respondent, Carrier observed that Respondent's classroom was messy and disorganized. Books and clutter were all over the place, so that it was difficult to locate resources that were needed to conduct the lessons. Carrier also observed that there were many pieces of information written on the board in an unstructured, disorganized manner, including information from lessons days ago and random vocabulary words, so that it was very difficult to decipher the information Respondent was attempting to convey in using the board. Carrier further noted that words frequently were misspelled and that there were grammatical errors in the information Respondent wrote on the board. Respondent timely completed the activities set forth in the October 17, 2012, IP. November 19, 2012 Evaluation On November 19, 2012, Santana conducted a fifth formal observation of Respondent's classroom teaching. She observed Respondent teaching reading/language arts for an hour and five minutes. Respondent again failed to meet PS 2. Once again, Respondent's instruction provided only one level of complexity and did not cater to the students' different learning styles and levels. The students were reading a story, and instead of incorporating instructional strategies aimed at meeting all students' learning abilities——such as instructing the high level students to write a paragraph, the grade level students to write a sentence, and the lower level students to draw a picture, about the story——she merely had all of them fill in the same workbook page. Respondent did not exhibit any improvement with respect to meeting PS 2. Respondent also failed to meet PS 3. Her lesson plans were not aligned to the instructional pacing guide and did not incorporate strategies to address the students' diverse learning styles and levels. Respondent did not exhibit any improvement with respect to PS 3. Respondent again failed to meet PS 4. Her instructional delivery did not actively engage the students and did not address their individual learning styles and needs. Because her instruction addressed only one level of complexity, she lost the high functioning and low functioning students. As a result, there were frequent interruptions that interfered with the pace of the instruction and caused students to engage in off-task behavior. Respondent did not exhibit any improvement with respect to PS 4. Respondent also failed to meet PS 8. The learning environment was neither challenging nor stimulating. Although the students were working in small groups presumably established according to learning style and level, they nonetheless were reading the same story and answering the same questions. That, and Respondent's continued failure to establish clear classroom procedures and expectations, resulted in frequent interruptions and distractions. Respondent did not exhibit any improvement with respect to PS 8. Recommendation to Terminate Respondent's Employment A post-observation meeting was held on November 29, 2012, and Respondent was properly notified of this meeting. At the meeting, Santana informed Respondent that she had failed to remediate her classroom performance deficiencies within the 90- day probation period, so that she (Santana) was recommending that Respondent's employment contract be terminated. Santana prepared a memorandum to the Miami-Dade Public Schools South Regional Director dated November 29, 2012, detailing Respondent's repeated failure to meet PS 2, PS 3, PS 4, and PS 8. The memorandum also stated: "Data indicate that this employee has not demonstrated corrective action." The memorandum recommended termination of Respondent's employment contract. Petitioner presented evidence, consisting of a summary exhibit and testimony from Gisela Field, the administrative director of the Office of Assessment, Research, and Data Analysis for Miami-Dade Public Schools, that Respondent's students' median percentile scores on the 2012 Stanford Achievement Test ("SAT")7/ for Grade 1 for both language arts and mathematics were below those for first grade students at Gulfstream as a whole, and for first grade students in the Miami-Dade County Public School District.8/ Santana did not testify that Respondent's students' SAT median percentile scores were considered in her evaluation of Respondent, or that they constituted a basis for her decision to recommend that Respondent be terminated. Petitioner asserts that the "data" to which Santana's November 29, 2012, memorandum refers are Respondent's students' SAT median percentile scores, evidencing that Santana did consider these scores in evaluating Respondent, and that they were one of the bases for her recommendation that Respondent be terminated.9/ Petitioner did not present any evidence regarding the relative weight given to Respondent's students' scores in conducting her performance evaluation. Respondent's Defenses Respondent began teaching in the Miami-Dade County Public School system in 1989. Thereafter, she took some time off to have children. As previously noted, she resumed fulltime teaching in the 2004-2005 school year. For the period commencing with the 2004-2005 school year, through the 2010-2011 school year, Respondent always received satisfactory classroom performance evaluations.10/ At the final hearing in this proceeding, Respondent testified that she was knowledgeable in preparing lesson plans; adhered to Miami-Dade County Public School District instructional pacing guidelines; engaged in collaborative planning with her colleagues and exchanged ideas regarding making the lessons exciting, fun, and interesting; used objectives, visual aids, posters, computers, books, and hands-on materials to engage students; and employed instructional techniques to address students' diverse learning styles and levels. She further testified that she closely observed her students and obtained feedback from them throughout the instructional day. Respondent also testified that she engaged her students in activities designed to get to know them, that she was sensitive to her students' experiences, that she attempted to make them feel comfortable and safe and to provide a warm and loving environment, and that she knew how to communicate with them and manage their classroom behavior. With respect to specific performance deficiencies identified over the course of the classroom observations conducted by Santana and Baldessari, Respondent asserted that some of the issues with instruction using computers stemmed from technical issues with the computers. In those instances, Respondent would have the students engage in reading activities using books until it was time for them to rotate to another learning center. Respondent believes she was a better teacher in 2011 than she was in 2004 when she re-entered the teaching field fulltime. In her view, this is due to her having participated in personal development workshops, receiving one-on-one instruction, and adapting her teaching style to new curriculum and materials. Respondent asserts that she did not teach any differently in the 2011-2012 and 2012-2013 school years than she had in the 2004-2005 school year or any other school year. Respondent contended that she is, and always has been, a very competent teacher, and that the negative performance evaluations she received during the 2011-2012 and 2012-2013 school years were unfair and illegitimate. Regarding the condition of the portable classroom to which she was assigned in the 2011-2012 school year, Respondent began to complain to Santana about the room's odor shortly after the beginning of the school year. In January 2012, she did contact Santana's supervisor Robert Kalinsky to express her concerns. Ultimately, she filed a worker's compensation claim. Once she moved to a different classroom in February 2012, she no longer experienced problems with odors in her classroom. She did continue to have problems with the use of air fresheners and scented candles in other parts of the school building. Respondent noted that only after she complained about the odor and air quality in the portable classroom did she begin receiving negative classroom performance evaluations. She contends that she received negative evaluations for having complained——particularly to Kalinsky and the School Board member——about the condition of the portable. Toward the end of the 2011-2012 school year, Respondent applied for a transfer from her instructional position at Gulfstream to another instructional position at another school in the Miami-Dade County Public School District. Both Santana and the Executive Director approved the transfer. Respondent found an instructional position in another school in the Miami-Dade County Public School District, but did not follow through with the transfer. The school was farther from her home than was Gulfstream, so teaching there would entail longer driving time and would add wear and tear to her older vehicle.11/ Findings of Ultimate Fact In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate her employment for failure to correct performance deficiencies pursuant to section 1012.34, and for "just cause"——specifically, for incompetency due to inefficiency, pursuant to section 1012.33 and rule 6A-5.056. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.34 and 1012.33 and rule 6A-5.056 alleged in the Notice of Specific Charges. Failure to Correct Performance Deficiencies With respect to the charge that Respondent failed to correct performance deficiencies under section 1012.34, the evidence establishes that Respondent consistently engaged in poor and ineffective classroom instructional practices and that she repeatedly failed to correct these instructional practice deficiencies, notwithstanding the very substantial effort that Santana, reading coaches Rapp and Carrier, and Respondent's peers devoted to assisting her in improving her teaching performance. Specifically, the evidence showed that Respondent was consistently ineffective at addressing the individual learning needs, styles, and levels of her students; that she failed to employ appropriate instructional strategies and resources to develop lesson plans that include goals, objectives, and activities to address her students' diverse needs; that she did not address her students' academic needs through a variety of appropriate instructional strategies and techniques that engage them in the learning process; and that she was ineffective in creating and maintaining a classroom environment conducive to learning. The credible evidence does not show that Respondent received negative instructional practice evaluations in retaliation for having complained about the condition of her classroom in the 2011-2012 school year. Rather, the persuasive evidence——which includes corroborative testimony and an IPEGS observation by Baldessari and testimony by Carrier——shows that Respondent received negative performance evaluations because she failed to meet the IPEGS performance standards. However, the evidence failed to adequately address the student performance component of Respondent's performance evaluation pursuant to section 1012.34(3)(a)1.a. As discussed in greater detail below, section 1012.34(3)(a) places great emphasis on student performance on student learning growth assessments——specifically, the FCAT or school district assessments——in evaluating the performance of instructional personnel. Indeed, the statute mandates that at least 50 percent of a performance evaluation be based on data and indicators of student of student learning growth as assessed annually by the FCAT or by school district assessments. Only where (as here) less than three years of data for student learning growth assessments (i.e., FCAT or school district test scores) are available can the percentage of the teacher's performance evaluation based on student learning growth be reduced to less than 50 percent——and even then, it cannot be reduced to less than 40 percent. Here, Petitioner did not present any evidence regarding the relative weight that Santana assigned to Respondent's students' 2012 SAT median percentile scores for language arts and mathematics in evaluating Respondent under section 1012.34. Accordingly, it cannot be determined whether the required relative weight of at least 40 percent was given to the scores in evaluating Respondent, and, ultimately, in recommending that she be terminated. For this reason, Petitioner did not prove that Respondent failed to correct performance deficiencies pursuant to section 1012.34 such that her employment should be terminated. Incompetency Due to Inefficiency As previously noted above, the evidence showed that Respondent consistently and repeatedly was ineffective at addressing the individual learning needs, styles, and levels of her students.12/ She repeatedly failed to employ appropriate instructional strategies and resources to develop lesson plans that include goals, objectives, and activities to address her students' diverse needs. She failed to address her students' academic needs through employing a variety of appropriate instructional strategies and techniques to engage them in the learning process. She consistently used the same instructional materials and techniques to teach students of varying learning styles and levels and did not adequately pace the lessons. She also failed, on a consistent basis, to create and maintain a classroom environment conducive to learning. Her room was disorganized and cluttered, with misspelled words and grammatical errors written on the blackboard. She often was unprepared, so did not efficiently conduct the lessons. She did not establish consistent classroom procedures to address student behavioral issues and keep students on task. As such, Respondent consistently and repeatedly failed to effectively communicate with and relate to the students in her classroom to such an extent that the students were deprived of minimum educational experience. Due to her inefficiency, she was neither able nor fit to discharge her required duties as a teacher.13/ Moreover, the evidence establishes that Respondent failed to perform duties prescribed by law.14/ Section 1012.53(1) provides in pertinent part that the primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals and to meet state and local achievement requirements. The evidence establishes that due to Respondent's serious, repeated performance deficiencies previously described herein, she did not work diligently and faithfully to, and did not succeed in, helping her students meet or exceed the annual learning goals they were supposed to meet as prescribed by curriculum and lesson plans. Nor did she work diligently and faithfully to help them meet state and local achievement requirements. In fact, Respondent's students' 2012 SAT median percentile scores—— particularly for mathematics, which shows their achievement as much as 34.5 percentile points lower than all first graders in the Miami-Dade County Public School District——stand as strong evidence to this point.15/ The evidence also established that Respondent's teaching practices and classroom were so disorganized that the welfare of her students was diminished.16/ Her lack of organization in teaching caused confusion on the part of her students and instructional time often was wasted. Further, the disorganization and clutter in her classroom made it difficult to locate resources for the lessons. It was apparent at the final hearing that Respondent cares about her students and believes that she is a good teacher. However, Respondent's personal feelings and beliefs do not overcome the strong evidence presented in this case showing that she is not a competent teacher. Petitioner proved that, for the reasons set forth herein, Respondent is incompetent due to inefficiency, pursuant to rule 6A-5.056.17/ Accordingly, Petitioner proved that just cause exists under section 1012.33 to terminate Respondent's professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order terminating Respondent's professional services employment contract on the basis of just cause under section 1012.33, Florida Statutes. DONE AND ENTERED this 7th day of January, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2014.
