The Issue Whether Petitioner was discriminated against by being given poor evaluations, receiving disciplinary action as the result of grievances, and being passed over for a promotion because of his race.
Findings Of Fact Petitioner was an employee of Respondent, Sunrise Community, Inc. He was employed by Respondent for eleven years. He worked as a caregiver in a facility for persons requiring intermediate care or therapy. He was a home manager supervising several co-workers in caring for and training mentally handicapped residents. Approximately one year prior to filing his complaint in 1996, Petitioner was counseled for improperly touching a female employee with whom he worked. He did not perform certain activities associated with his job. Because of his conduct and work deficiencies, Petitioner was given a poor performance evaluation. Subsequently, a promotional position became open. Petitioner applied for the opening. He was qualified for the position. He was not promoted. Petitioner is a black male. Petitioner asserts that he was not promoted because he is a black male. The evidence shows that Petitioner did touch a female co-worker inappropriately, and that Respondent gave him a reprimand for this conduct. He received a poor performance evaluation. Such evaluations are by their nature subjective; however, the reprimand and his poor job performance were sufficient cause to reduce his evaluation. The promotional position was filled by a black female employee of the company who had more experience than Petitioner, and who had previously performed similar duties. There was no showing that the grievances, evaluations, or failure to promote were racially motivated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter its final order dismissing Petitioner's Petition. DONE AND ENTERED this 21st day of August, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 21st day of August, 2000. COPIES FURNISHED: Wilford Evans 925 Cochran Street Tallahassee, Florida 32301 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue posed herein is whether or not the Respondent, Sherba Brothers, Inc., owes the Petitioner wages in the amount of $1,446.62 based on Respondent's failure to comply with the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes. Based on the entire record compiled herein, including the testimony of the witnesses and their demeanor, I make the following:
Findings Of Fact The Petitioner, Aldine Clinton Carter, Jr., was employed by Sherba Brothers, Inc., from approximately May 27, 1976 to October 14, 1976 as a licensed electrician (Dade County). The project in which the Petitioner was employed is the Dade County Courthouse, Project No. 4169, Code 915-018001 which entailed the complete renovation of the 12th floor. The Petitioner was employed by Respondent approximately 39 days, 2-1/2 hours, receiving wages of One Thousand Nine Hundred Thirty-Four Dollars and Twenty-Five Cents ($1,934.25). The prevailing wage rate for electricians in the subject area is Ten Dollars and Seventy-Five Cents ($10.75) which based on the work period involved here i.e. 39 days, 2-1/2 hours times the prevailing hourly rate equals Three Thousand Three Hundred Eighty Dollars and Eighty-Seven Cents ($3,380.87). This figure represents a difference of One Thousand Four Hundred Forty-Six Dollars and Sixty-Two Cents ($1,446.62) which as stated is the amount claimed by the Petitioner as now being due and owing. The Respondent offered no evidence to contest the fact that the Petitioner was in fact, employed as an electrician on the subject project. Some testimony was adduced by Respondent for the purpose of establishing that Petitioner was classified as a second or third class electrician. The proof falls short in this regard. There was no testimony establishing that there in fact exist such a classification(s) and the job classifications listed in the specification book for this project list only an electrician classification at the hourly rate of Ten Dollars and Seventy-Five Cents ($10.75). It is undisputed that the Petitioner is licensed as an electrician. Therefore, for purposes of this proceeding, I conclude that the Petitioner was in fact employed as a licensed electrician while employed by Respondent. However, the Respondent contends that as a nonunion subcontractor, it was not obligated to pay the prevailing wage rate and that the Petitioner was aware of this when he accepted the job for the lower wages. 1/ Secondly, the Respondent contends, that in any event the Petitioner failed to timely file an affidavit in protest of the asserted "noncompliance" as is set forth and defined in Chapter 215.19(3)(a)(1), Florida Statutes. In this regard, the last date the Petitioner was employed by Sherba Brothers was October 14, 1976. On October 31, 1976, the Petitioner sent a letter to the Public Works Department, protesting the fact that he was not paid the prevailing wages. That letter was forwarded to the administrative agency for that project and the county architect, Alf O. Barth, advised Petitioner, by letter dated November 15, 1976, that while his letter of October 31, 1976, contained the essential information regarding his claim, his letter was not notarized as required by state law. The general contractor, Rainey Construction Company and the subcontractor, Sherba Brothers (Respondent) were both notified by copy of Mr. Barth's letter to Mr. Carter that the amount as claimed by him was being withheld from their final payment until a final determination had been made on Petitioner's claim. Two days later on November 17, 1976, the Petitioner forwarded a notarized letter to the parties involved. The Petitioner testified that he made numerous inquiries from various project employees seeking to ascertain if in fact the Respondent was obligated to pay the prevailing wage rate. According to his unrefuted testimony, it was only after he left the Respondent's employ that he was able to determine that Respondent was indeed obliged to pay prevailing wages. This determination came through a communique from Messr., Luther J. Moore, Administrator of Prevailing Wage. The Respondent failed to introduce evidence showing that the prevailing wage rate was posted on this project during the period in which the Petitioner was employed. By so doing, the Petitioner urges and is now claiming that be was thwarted in asserting his rights under the prevailing wage law.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent shall pay the Petitioner the sum of $1,446.62 as claimed in the petition filed herein. RECOMMENDED this 7th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether Respondent has violated certain child- care standards in the operation of her child-care facility and, if so, what penalty should be imposed.
Findings Of Fact Respondent owns and operates a licensed daycare facility. Her license expires June 30, 1997. On January 28, 1997, during an inspection by Petitioner's inspector, Respondent's facility was inadequately staffed. One staffperson was supervising a group of nine children, three of whom were less than one year old. Also, a child was asleep, unsupervised, in a back room. The inspector also noted on the inspection report that two staffpersons had not completed the required 30 hours of training. Based on Respondent's assurances, the inspector noted on the inspection form that the two employees were enrolled in the 10-hour class that they needed to complete their required training. The January 28 inspection report names the two employees as "Tabitha" and "Donna." "Tabitha" is Tabitha Johnson, whom Respondent hired on January 21, 1997, and who ceased working for Respondent sometime prior to February 17, 1997. "Donna" is not the first name of any of Respondent's employees, but, whoever the inspector intended to name "Donna" also ceased working for Respondent prior to February 17, 1997. The January 28 inspection of staff training was a followup of an inspection on June 14, 1996, at which time the inspector had discovered that four employees were lacking the required 30 hours of training. By letter dated June 24, 1996, Petitioner gave Respondent until December 30, 1996, to correct this violation or face a fine of $25 per day per employee. The inspector reported that these four employees were "Joan," "Dana," "Debbie," and possibly "Westin." On February 12, 1997, a local television-station crew operating a concealed camera visited Respondent's center. Posing as parents interested in placing their child at Respondent's center, the crew videotaped a room that appeared to reveal that a number of children were unattended. However, the evidence failed to establish that the closest staffperson was sufficiently far from the children as to be unable to supervise them. On February 17, 1997, during another inspection by Petitioner's inspector, Respondent's facility was again inadequately staffed. One staffperson was supervising a group of 13 children, one of whom was less than one year old. The inspector also reported that seven children were playing unsupervised on a patio. However, the evidence fails to establish that the closest staffperson was sufficiently far from the children as to be unable to supervise them. Petitioner has cited Respondent repeatedly for inadequate supervision and has fined her twice in 1993.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order imposing a $300 fine against Respondent and dismissing the remainder of the charges against her. DONE AND ENTERED in this 27th day of June, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on this 27th day of June, 1997. COPIES FURNISHED: Susan Mastin Scott Senior Health Attorney Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Patricia Morman Post Office Box 1153 Fort Myers, Florida 33902-1153 Richard Doran, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether the continuing contract of employment between the Petitioner, St. Petersburg Junior College (SPJC or the College), and the Respondent, Mary Tranquillo, should be terminated and, if so, whether the Respondent should be dismissed from her employment.
Findings Of Fact The Petitioner, St. Petersburg Junior College (SPJC or the College), has several campuses and approximately 60,000 students. The Respondent, Dr. Mary Tranquillo, who has 32 years of teaching experience, has been employed by the College for 24 years as an instructor in the area of business technologies, with an emphasis in fashion and marketing. The Respondent has been on a continuing contract with the College since 1974. There is no question as to her performance through approximately 1991. She was a competent, effective and valuable instructor during those years. In approximately January 1992, the Respondent began to complain of illness which she attributed to various factors in her work environment. Over the years since then, Tranquillo has blamed tar fumes from roofing work being done in the vicinity, as well as fumes and molds from various buildings and other sources on or near the campus. The Respondent not only called in sick, she also sometimes stayed away to avoid what she said were the environmental factors responsible for her illnesses. By her own reckoning, the Respondent was absent from work from January 15 through January 24, from February 19 through February 28, from March 27 through June 17, 1992 (for a total of 103 days during the 1991-92 school year.) During the 1992-93 school year, Tranquillo was absent from September 22 through September 24, on October 22, and from October 26 through October 29, 1992, and from February 5 through 10, on February 15, from February 25 through February 26, and from March 23 through May 7, 1993 (for a total of 63 days.) During the 1993-94 school year, Tranquillo was absent on November 8 and 9, 1993, from February 9 through 11, 1994, from June 14 through June 16, and from July 6 through July 14, 1994 (for a total of 17 days.) During the 1994-95 school year, Tranquillo was absent on October 14, 1994, and on March 2 and 3, 1995 (for a total of 3 days.) During the 1995-96 school year, Tranquillo was absent on September 21 and 22, from October 9 through 12, from October 16 through 20, and from November 9 through 16, 1995 (for a total of 18 days.) During the 1996-97 school year, Tranquillo was absent from September 27 through 29, from October 21 through 25, and on November 15, 1996, and from January 6 through 9, from February 10 through 13, 1997 (for a total of 17 days.) During the 1997-98 school year, Tranquillo was absent from October 9 through 17, 1997. Paid sick leave is accumulated by SPJC faculty at the rate of one day per month of service and is permitted to be carried over. Sick leave is credited at the beginning of each school year. There also is a sick leave pool available; members of the pool are assessed one day of leave in return for the ability to use up to 44 days of sick leave from the pool after their personal sick leave is exhausted. The Respondent exhausted her paid sick leave each year since 1992, except for the 1994-95 school year. In addition, the Respondent has used all 44 days of sick leave available to her as a member of the sick leave pool. The Respondent's absences clearly impaired the educational experience of students enrolled in her classes. The Respondent's classes were not impacted equally. As evidenced by the testimony of many students, the Respondent's students generally seem to have been able to obtain valuable educational experiences during times when the Respondent was not absent, or was absent less. On the other hand, as evidenced by the testimony of many other students, the students' educational experiences suffered during times when the Respondent was absent frequently. Despite efforts to focus attention on the former occasions, the Respondent herself admitted to the latter. When the Respondent was absent frequently, it was sometimes difficult to obtain and prepare substitutes. Sometimes, there was little or no notice. Sometimes, substitutes could not be found at all, and class had to be canceled. Sometimes, a substitute was found, but the substitute was not qualified to teach the Respondent's class. Sometimes, there was not enough time to prepare the substitute. The College did not prove that the problems with covering for the Respondent's absences were all the fault of the Respondent. Before June 1997, the Respondent generally seemed to try to prepare her substitutes, and the College did not prove that the Respondent failed to prepare lesson plans for substitutes prior to June 1997. But there sometimes was difficulty communicating instructions to substitutes or locating materials to be used by the substitutes. The Respondent sought to blame all difficulties in covering for her absences on the administration, office clerical staff, and the substitutes. The Respondent blamed the administration for having the clerical staff select substitutes and blamed the clerical staff for selecting substitutes who were not qualified. The Respondent also went so far as to suggest the existence of a conspiracy among members of the administration, clerical staff and substitutes to sabotage the Respondent's efforts to cover for her absences in order to trump up charges for her dismissal. It is found that there was no such conspiracy against the Respondent. It is true that, as time went on, some of those involved in covering for the Respondent's absences felt put upon. Some administration and clerical staff became frustrated and aggravated; so did some substitutes, some of whom refused to continue to respond to requests to substitute for the Respondent. But these individuals did not cause the Respondent's problems. Rather, the problems of trying to cover for the Respondent were caused by the sheer number of the Respondent's absences, together with their general unpredictability in time and length; these problems made it difficult and frustrating for those involved. The Respondent failed to appreciate, and instead minimized, the hardships on the College in trying to cover for the Respondent's many absences. Additional problems caused by the Respondent's absences included lack of continuity, failure of communication with the students, and student apprehension concerning grading. For some of the Respondent's classes, these problems were so severe that the administration considered giving all students an "A" just for putting up with all of the problems. The Respondent also tended to obsess on the environmental factors she thought was causing her absences. Sometimes, when the Respondent came to class, she spent excessive time discussing her grievances with the College regarding her illness and the factors she blamed for them. This also diminished the quality of the educational experience of many students. The students most impacted by these problems felt cheated and became frustrated and angry, as well as concerned about grades. Some initiated and signed petitions to the administration to attempt to get satisfaction. Contrary to the Respondent's suspicions, these petition drives and student grievances were not instigated by substitutes (who essentially told complaining students that they should make their complaints known to the administration), by administration, or by other faculty. They were not yet another part of an alleged conspiracy to get rid of the Respondent. Rather, they were expressions of honest and understandable concerns and grievances on the part of the students. Generally, instructors at the College are expected to not only teach classes but also attend faculty meetings, serve on committees, and be part of a professional group. It is clear that, due to her excessive absences, at times the Respondent was unavailable to participate in these kinds of extracurricular activities. Some of the extracurricular activities cited by the Respondent to demonstrate her level of participation actually were not extracurricular. For example, she cited the preparation of lesson plans and claimed that they were extracurricular. Similarly, she attempted to characterize the selection of a textbook for her class. Some extracurricular "activities" cited by the Respondent were not very active. The Respondent cited a plan that she had to promote courses in her area of instruction as extracurricular, but there was no evidence that she acted on the plan. The Respondent testified that she was a member of an "organization development network" that holds meetings, but on cross-examination she admitted that she actually never has attended a meeting of the group. The Respondent cited a letter she wrote encouraging students to attend a meeting, but it was revealed on cross-examination that the Respondent herself did not attend the meeting. The Respondent called a witness to testify to time the Respondent spent assisting with one particular extracurricular project, but the testimony was that, in that instance, the Respondent just compiled some materials for the witness, who could not say "how many minutes it took" the Respondent. The Respondent credits herself with time spent writing for publication. Indeed, there was evidence to support this claim. However, it appears that less time was spent writing for publication in the time period from 1992 through 1997, than earlier in the Respondent's career. For example, a book the Respondent claims to have been working on for the last five years still consists of only an outline. While able to cite weaknesses in the Respondent's demonstration of her level of participation in extracurricular activities, and while proving a general requirement to participate in extracurricular activities, the College did not prove precisely what is required of instructors in this regard. There was no evidence of any standards by which an instructor's level of participation can be quantified or measured. Without such standards, the College was unable to prove that the Respondent failed to meet the College's requirements. Beginning with the 1993-94 school year, the Respondent began receiving negative performance evaluations. Essentially, the College cited the problems caused by the Respondent's excessive absences, and the Respondent blamed them on illness allegedly caused by environmental factors on campus that were beyond her control. Although the College tried to accommodate the Respondent, the Respondent did not think the College was doing enough and blamed the College for being callous and uncooperative. Eventually, the College came to question the existence of the environmental factors to which the Respondent attributed her problems and began to believe that the Respondent's demands had become unreasonable. As a result, the working relationship between the Respondent and administration deteriorated, and the College began to give consideration to terminating the Respondent's continuing contract. By the end of the 1996-97 school year, the College decided to terminate the Respondent's continuing contract as of the end of the school year. On or about May 8, 1997, the College issued the President's Petition and Notice to Respondent of Hearing Rights. On the belief that it was improper or unnecessary after initiation of termination proceedings, the College never completed the Respondent's performance evaluation process for the 1996-97 school year. Due to the pendency of this proceeding, the Respondent has continued to teach during the 1997-98 school year. In June 1997, the Respondent began to take the position that, when she had to be out sick but had no more sick leave, she would not prepare lesson plans or otherwise do "work" at home to help prepare substitutes. When she invoked this new position, the College countered that it violated the requirement that instructors prepare lesson plans and prepare substitutes when necessary. Eventually, this dispute was resolved, and the Respondent receded from her position. It is not a continuing issue. In 1994, the Respondent filed a workers' compensation claim against the College alleging that she had multiple chemical sensitivity and related illnesses arising out of and in the course and scope of her employment. Both parties were represented by counsel in that proceeding, and they fully and fairly litigated the issue as to whether the Respondent was exposed to any chemical through her work environment at the College which caused, accelerated, or aggravated any physical or mental illness. On June 19, 1997, an Order was entered Judge of Compensation Claims ruling against the Respondent and in favor of the College on that issue and denying the claim. The Respondent presented no evidence at the hearing to support her claim that her absences were caused by genuine illness. No physician testified, and no medical evidence was introduced. Due to the long-standing problems beginning in January 1992, the evidence proved "good and sufficient reasons" to terminate the Respondent's continuing contract. Yet, the evidence also was that, when the Respondent is "on-the-job," physically and mentally, she can be a very effective instructor. Indeed, the evidence was that the Respondent's attendance at work and her work performance have been better since action was initiated to terminate her continuing contract. In January 1998, the Respondent was given an office and a classroom which she does not think affect her health adversely. (Ironically, they are the same office and classroom offered to the Respondent in 1994 and 1995; the Respondent believes that measures taken since then have ameliorated the environmental factors that allegedly were causing her health problems.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of St. Petersburg Junior College enter a final order terminating the Respondent's continuing contract and returning her to an annual contract for another three years. DONE AND ENTERED this 5th day of June, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1998. COPIES FURNISHED: Board of Trustees St. Petersburg Junior College c/o Maria N. Sorolis, Esquire Allen Norton and Blue Hyde Park Plaza, Suite 350 324 South Hyde Park Avenue Tampa, Florida 33606 Maria N. Sorolis, Esquire Allen Norton and Blue Hyde Park Plaza, Suite 350 324 South Hyde Park Avenue Tampa, Florida 33606 John E. Tuthill, Esquire 3300 49th Street, North St. Petersburg, Florida 33710
The Issue The main issues in this case are whether, as the district school board alleges, a teacher has given the district just cause to terminate his employment contract for incompetency, and, alternatively, whether the teacher failed to correct performance deficiencies during a 90-day probationary period, which would constitute separate grounds for dismissal if proven true.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all relevant times, Respondent Christopher Marshall ("Marshall") was employed as a math teacher in the Broward County school district, a position which he had held for some 15 years before this proceeding began. During that period, Marshall taught at a few different schools, the latest being McArthur High, where he worked for several years up to and including the 2013-14 school year. Marshall's teaching career, sad to say, has been mediocre. The greater weight of the evidence establishes that, at least as early as 2002, Marshall was identified by administrators and colleagues as a teacher of marginal ability. More than once over the years Marshall was placed on performance probation due to concerns about his unsatisfactory performance. Rather than terminate Marshall's employment, however, the district transferred Marshall from school to school, and somehow he managed to muddle through, doing enough to be rated "satisfactory" and avoid getting the sack. One of Marshall's defining characteristics has been the remarkably high percentages of Fs and Ds that his students consistently have earned, year in and year out. Frequently more than half of his students took home final grades lower than a C——and sometimes quite a bit more than 50 percent fell into this category. This was true across grade levels (Marshall taught grades nine through 12) and without regard to degrees of subject-matter difficulty (Marshall taught advanced as well as basic classes; he was not assigned only struggling students). It was not uncommon for Marshall to fail between one-quarter and one-third of his students. In the 2013-14 school year, for example, 31 percent of Marshall's Liberal Arts Math 2 students received a failing grade; 25 percent of his Math College Readiness students failed; and ten percent of his Algebra 2 students got Fs. This was consistent with a decade-long pattern. Needless to say, a teacher whose students in large numbers routinely get Ds or worse in his classes attracts attention from students, colleagues, parents, and administrators. In Marshall's case, students complained to other teachers——and to their parents. Parents, of course, complained to administrators and demanded that their children be placed in other classes. Often, to placate angry parents, Marshall's students were transferred, with the result that Marshall's classes were small, and other math teachers had to squeeze in additional students. Teachers complained about this. It must be acknowledged that poor grades are not necessarily a reflection of the teacher's ability or lack thereof. Certainly, as a general rule, each student bears substantial responsibility for his or her own grade, and no one should expect a teacher simply to hand out high marks that are unmerited and unearned. Sometimes, to be sure, an F or a D is as richly deserved as an A or a B. That said, the sheer persistence of Marshall's grade distribution under different conditions and through changing student populations implies that something other than resistance or indifference to learning, poor study habits, or lack of intellectual ability must be at work. The undersigned has combed the record for an explanation of his students' poor grades that might exonerate Marshall but can find none. There is no persuasive evidence, for example, that Marshall is a demanding teacher who sets the bar high for his students, administering tough but fair tests that are difficult for the unmotivated or unprepared to pass. To the contrary, Marshall had his students spend time on rote exercises, such as copying definitions and formulas from the textbook, which have little educational value. Nor did Marshall's students tend to excel in their next math classes. Rather, after being taught by Marshall, his students often had difficulty in their subsequent courses because they had not learned the prerequisite material. For years, administrators have tried to cajole or compel Marshall to reduce the number of students receiving Fs and Ds in his classes, not by the expedient of grade inflation, but by implementing different pedagogical techniques and strategies. Marshall, however, has ignored these importunings and directives, and nothing has changed. Marshall's apparent imperviousness to criticism has been an ongoing source of frustration to his colleagues and administrators. Marshall considers himself to be an "awesome" teacher, and therefore he concludes that anyone who has a different opinion——which unfortunately seems to be nearly everyone with whom he has worked——is either mistaken, lying, or treating him unfairly. This has led Marshall to file numerous grievances and complaints against his supervisors, none of which has been successful. He is not, however, confrontational, discourteous, or abusive in his workplace relationships. Rather, Marshall engages in passive-aggressive behavior. Faced with a demand or a directive, Marshall does not argue (although he might politely disagree); he simply does not comply. The greater weight of the evidence persuades the undersigned to find that the bad grades Marshall's students consistently have received are a symptom of Marshall's inability to teach. Although he knows his subject, Marshall lacks the skills necessary to impart his knowledge to his students, who consequently do not learn math in his classes. It is not that Marshall is deliberately trying not to succeed. He is not being insubordinate in this regard. He is simply not suited to the job of teaching high school math. In 2011, following a legislative directive then recently enacted, the school district adopted a teacher evaluation system known as the Broward Instructional Development and Growth Evaluation System ("BrIDGES"), which is based on Dr. Robert J. Marzano's strategies for educational effectiveness. When rating a teacher's classroom performance using BrIDGES, an evaluator inputs his or her observations into a database by filling out an electronic "iObservation" form. The iObservation tool contains 60 "elements," each of which represents a discrete strategy, action, or skill that a teacher might employ as appropriate: e.g., "Using Academic Games," "Identifying Critical Information," and "Displaying Objectivity and Control." The elements are organized under four separate "domains" as follows: Domain 1: Classroom Strategies and Behaviors (Elements 1-41) Domain 2: Planning and Preparing (Elements 42-49) Domain 3: Reflecting on Teaching (Elements 50-54) Domain 4: Collegiality and Professionalism (Elements 55-60). The 41 elements of Domain 1 are further subdivided into nine Design Questions, DQ1 through DQ9. On October 8, 2013, the school district and the Broward Teachers Union entered into a Memorandum of Understanding ("MOU") setting forth their agreements regarding the use of BrIDGES to evaluate teachers for 2013-14. Pursuant to the MOU, each classroom teacher was to receive at least three observations, including one formal (30 or more minutes), one informal (15-25 minutes), and one snapshot or walkthrough (3-10 minutes) observation. During an observation, the subject teacher receives a "datamark" (prescribed number of points) for each element that the evaluator chooses to rate. For 2013-14, the datamarks were as follows: Innovating (Highly Effective), 4 points; Applying (Effective), 3 points; Developing (Effective), 2.5 points; Beginning (Needs Improvement), 2 points; and Not Using (Unsatisfactory), 1 point. Each teacher was to receive at least 45 datamarks, comprising at least 25 datamarks in Domain 1 and 10 within Domains 2, 3, and/or 4. A weighted average of the datamarks assigned to a teacher's performance as recorded on the iObservation forms became the teacher's Instructional Practice Score ("IPS"). The IPS was equal to 0.68X plus 0.32Y, where X was the average of the teacher's Domain 1 datamarks and Y was the average of the teacher's datamarks for Domains 2, 3, and 4 combined. The IPS was reported as a number having three decimal digits, to the thousandths place. This created a false precision, for the calculated result could not possibly have been more precise than the number having the least number of significant figures in the equation, which would always be a one-digit integer (unless the teacher happened to receive strait 2.5s——possible, but unlikely, and not the case here). In other words, the numbers to the right of the decimal point in the teacher's IPS were mathematically insignificant, spurious digits, because the original data could not support a measurement beyond the precision of one significant figure. The IPS should have been (but was not) rounded to a single-digit integer to avoid reporting insignificant digits. For 2013-14, the BrIDGES Overall Evaluation Score equaled the sum of the teacher's IPS (weighted as 49%), Deliberate Practice score (weighted as 1.0%), and Student Growth score (weighted as 50%). Teachers at McArthur High (including Marshall) for whom no individual student data were available automatically received a Student Growth score of 3.0 for that school year, and all teachers (including Marshall) who completed a self-assessment received a Deliberate Practice score of 3.0. The Overall Evaluation Scale for 2013-14 was Highly Effective (3.450-4.000), Effective (2.500-3.449), Needs Improvement (2.000-2.499), and Unsatisfactory (1.000-1.999). As of February 4, 2014, Marshall had received eight observations: three formals, three informals, and two walkthroughs. He had received 56 datamarks in Domain 1 and five datamarks in Domains 2, 3, and 4. His weighted IPS, to that date, was 2.145 (but this computed score was precise to no more than one significant figure and therefore should be understood as a 2 after rounding off the spurious digits), or Needs Improvement. Pursuant to the MOU, once a teacher receives an average IPS of Needs Improvement or Unsatisfactory among other conditions that Marshall had met as of February 4, 2014, a Performance Development Plan ("PDP") may be written for that teacher. Accordingly, in early February 2014, a PDP was written for Marshall. As well, on February 12, 2014, the principal of McArthur High placed Marshall on performance probation for 90 calendar days, delivering to Marshall a notice of "less than effective performance" ostensibly pursuant to section 1012.34(4), Florida Statutes. The statute, however, authorizes 90-day performance probation only for a teacher whose performance is unsatisfactory, and Marshall's performance was not unsatisfactory; it was Needs Improvement. Needs Improvement is, to be sure, less than Effective performance, but it is better than Unsatisfactory. Indeed, none of the levels of performance besides Unsatisfactory denotes unsatisfactory performance and thus, logically, all teachers rated Highly Effective, Effective, or Needs Improvement fall within the range of satisfactory performance. In any event, between February 28 and May 7, 2014, Marshall received 12 more observations, which added 75 datamarks to his total in Domain 1 (making 131 in all) and six additional datamarks in Domains 2, 3, and 4 (for a grand total of 11). The iObservation forms for Marshall's last six observations, incidentally, are not in evidence. As of May 7, 2014, Marshall's IPS was 1.963. This number, by itself, would be Unsatisfactory on the Overall Evaluation Scale. Given, however, that the initial numerical data was captured (mostly) in single-digit integers, together with a handful of 2.5s, the decimal places are spurious in this result; there is no meaningful distinction between "1.963" (which is a textbook example of false precision) and "2" (which is what 1.963 should be rounded up to, to avoid the fallacy of overprecision). Thus, if the insignificant figures are ignored, Marshall's IPS, by itself, is actually Needs Improvement. But more important, Marshall's IPS was not his Overall Evaluation Score, and therefore it is improper and unfair to deem his performance Unsatisfactory on the Overall Performance Scale based on an IPS of 1.963 as the School Board wants to do. Marshall's Overall Evaluation Score, as calculated by the School Board, was 2.492 — Needs Improvement.1/ Again, Needs Improvement is less than Effective and clearly not ideal, but it is not Unsatisfactory. To the contrary, Needs Improvement is one of the levels of satisfactory performance. Going a step farther, if Marshall's IPS were rounded to 2, as it should be to eliminate the false precision, and his Overall Evaluation Score recalculated absent the spurious decimals, then his final score would be 2.51, which in turn should be rounded to 3 to avoid overprecision, but which equals Effective performance regardless. The point is, based on a final score of 2.492, Marshall's overall performance can as correctly be deemed Effective as Needs Improvement, for there is no real difference between 2.492 and 3 based on the original data used to make these calculations.2/ (To repeat for emphasis, computations cannot make the original data more precise.3/) Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Marshall is guilty of the offense of misconduct in office, which is defined in Florida Administrative Code Rule 6A-5.056(2).4/ The greater weight of the evidence establishes that Marshall is guilty of incompetency,5/ which is just cause for dismissal from employment. A preponderance of the evidence establishes that Marshall's performance as measured in accordance with the BrIDGES evaluation system was not Unsatisfactory during the 2013-14 school year. Therefore, the evidence does not support the termination of Marshall's employment contract pursuant to section 1012.34(4). The evidence does not support a determination that Marshall independently violated section 1012.53, apart from his incompetency, which affords a sufficient basis (as "just cause") for dismissal. The evidence does not support a determination that Marshall independently violated School Board Rule 4008(B), apart from his incompetency, which affords a sufficient basis (as "just cause") for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing Marshall from his employment as a teacher in the Broward County Public Schools for the just cause of incompetency as a result of inefficiency. DONE AND ENTERED this 24th day of March, 2016, in Tallahassee, Leon County, Florida. S 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 24th day of March, 2016.
Findings Of Fact At all times relevant hereto, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF) and operated a home with thirteen residents. At a survey conducted April 25, 1985 some seventeen (17) class III deficiencies were noted by the survey team and these discrepancies were brought to the attention of the ACLF administrator at the exit interview held. Respondent was given thirty (30) days to correct these discrepancies. A follow-up inspection on Respondent's ACLF was conducted July 9, 1985. At this inspection the following discrepancies remained uncorrected: there was no assurance that staff providing assistance with personal hygiene have inservice or other training in personal hygiene care from a qualified instructor; four residents' files did not contain a completed Health Assurance form; physical examinations of three (3) of thirteen (13) residents did not include a statement that on the day of the examination the individual was free of communicable disease; and there was no three-compartment sink or other approved system available to sanitize kitchen utensils. Respondent acknowledged the deficiencies above-noted had not been corrected at the time of the reinspection. In mitigation, Respondent presented evidence that requests had been made of the doctors for the missing evidence in the residents' files and the doctors were inordinately slow in forwarding such information. With respect to staff training in personal hygiene, Respondent attempted to enroll its staff in the required training but ran into delays of a month or so in getting its personnel in these classes. With respect to the three-compartment sink, Respondent ordered the first replacement sink from a plumber who went out of business before installing the sink; a second sink was ordered but the sink was too small; and finally, Respondent replaced the deficient sink with the proper type.
Recommendation It is recommended that a final order be entered assessing an administrative fine of $550 against Trevor Jones, d/b/a Brer Fox Retirement Home, Inc., with interest as provided by Section 687.01, Florida Statutes. DONE AND ORDERED this 10th day of April 1986 in Tallahassee, Leon County, Florida. K. N. AYERS 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 10th day of April, 1986. COPIES FURNISHED: Mr. William Page, Jr. Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Carol M. Wind, Esquire 2255 East Bay Drive Clearwater, Florida 33518 Mr. Trevor Jones 9675 94th Avenue North Sarasota, Florida 33546
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This controversy involves an allegation by petitioner, William E. Bergen (Bergen or petitioner), that respondent, BellSouth Telecommunications, Inc. (BellSouth), refused to reasonably accommodate his handicap. BellSouth is an employer that employs fifteen or more employees and thus is subject to the Florida Civil Rights Act of 1992. BellSouth denies the allegation, and a preliminary investigation by the Florida Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. Petitioner began his employment with BellSouth (then known as Southern Bell) in 1979. He was initially stationed in the Metro Dade service area (greater Miami area) but six months later was transferred to the North Dade service area. While employed in South Florida, Bergen briefly worked as an outside plant technician but soon changed to the position of service technician. In that position, he was required to install and repair residential and business telephone lines. In May 1990, Bergen moved to Gainesville, Florida, which lies within the North Florida Division of BellSouth. After taking a test, he began working in operator services on July 13, 1990. An operator generally assists customers in placing calls, arranges credit for misdialed numbers, assists handicapped customers in dialing numbers, answers customer inquiries and performs other related tasks. At the Gainesville office, an operator sits or stands at one of a number of unassigned work stations, all having a standard size desk with a computer terminal and keyboard. At least two work stations have stand-up desks for those operators who choose to work in a standing position. All operators generally work a seven and one-half hour shift with one-half hour for meals. In Bergen's case, he usually worked the 3:30 p. m. - 11:30 p. m. shift. Except for Bergen, who stands six feet four and one-half inches tall, all other operators working in the Gainesville office were less than six feet. Thus, Bergen could not fit his knees underneath the standard size desk and the computer screens were not at eye level. Also, because his hands were so large, Bergen used an erasor rather than his fingers to key the keyboard. Until October 1992, petitioner says that, except for absences due to injuries to his lower back and eye, his attendance had been "perfect" over the prior 13-year period, and BellSouth did not dispute this contention. BellSouth has a Benefits Administration Department, which makes determinations regarding an employee's disability status, as well as decisions regarding any medical restrictions that will be imposed upon an employee after returning to work. In doing so, that Department relies upon the treating physician's notes and "quite often" it requires the employee to have a functional capacity evaluation performed. In some cases, the employee is required to have an independent medical evaluation performed by another doctor. Finally, the Department relies upon advice from its own in-house medical consultant, Dr. Barry Kern, who is board certified in occupational medicine. As will be recounted in subsequent findings, in making a decision as to petitioner's status, the Benefits Administration Department relied upon the doctor's notes, a functional capacity evaluation, an independent medical evaluation, three work site evaluations by occupational therapists, and input from its in-house medical specialist. In the latter part of October 1992, petitioner woke up one morning with his shoulder and neck "bothering" him. He continued to work that week but the condition became progressively worse. He eventually went to the emergency room at a local hospital on Friday, October 23, 1992. Petitioner was given pain medication and told to put his right arm in a sling. The following Monday, October 26, 1992, petitioner visited his family physician (Dr. Guillen) who believed he might be suffering from a pulled muscle. After returning to work, petitioner had his computer and keyboard moved to the left side of his desk so that he could rest his right arm on the desk and "key" the keyboard using his left arm. Petitioner continued working with his left hand until Thanksgiving Day, November 26, but went home that day because he says he "couldn't stand the pain anymore." He called in sick the next day and began a week's vacation the following Monday. In early December, petitioner visited a chiropractic physician, who recommended that an MRI be performed and that petitioner consult a neurosurgeon. Accordingly, petitioner had an MRI performed and on December 3 visited a Gainesville neurosurgeon, Dr. Freeman. He was told by Dr. Freeman that he had probable cervical disc disease (multiple level cervical spondylosis), a condition that causes pain in the neck area, and a possible herniated disc in the C-5 and C-6 area. In layman's terms, cervical spondylosis means arthritis of the neck and wear and tear on the discs and small joints of the neck. It is a degenerative condition that comes with age and produces bony growth in the spine that can put pressure on nerves in the neck. Dr. Freeman suggested petitioner undergo physical therapy on a twice-weekly basis. Bergen did so beginning December 10. Because of his ailments, petitioner was placed on short-term disability leave with pay from December 7 until January 8, 1993. This type of leave is required when an employee is absent from work due to illness or injury more than seven consecutive days. By January 5, 1993, Bergen was no longer experiencing any neck pain and he was able to "use (his) arms." Accordingly, he asked Dr. Freeman for permission to return to work. Dr. Freeman prepared a disability certificate authorizing Bergen to return to work effective January 11 and assume his "regular" work duties with no restrictions. When he returned to work that day, petitioner asked his second level manager, Rebecca P. Leynes, if he could be "loaned" from the operator services section to "outside forces" but Leynes declined to do so. Bergen then assumed his regular operator job duties. Because of pain in his arm and neck, however, he again went on short-term disability leave on January 20 and remained on leave with pay until February 3. During his absence, petitioner was treated by Dr. Freeman, who suggested that an occupational therapist evaluate his work site to determine what changes could be made to alleviate some of his discomfort. The therapist visited the work site on January 25 and prepared a report the same date. The report recommended that BellSouth provide an anti-glare screen, provide a larger swivel desk chair at least twenty-two inches high, raise the desk to at least thirty-two inches to accommodate Bergen's height, place the keyboard at a forty-five degree angle, and "provide use of an adequate standing table daily." Petitioner returned to work on February 3 and was told to use the stand-up position as an accommodation to his ailment. After a heated conversation with Leynes because no work station had been modified, Leynes advised him that the Gainesville operator services center was slated for two adjustable work surfaces but they were delayed for budgetary reasons since the center already had two stand-up positions. Leynes then proceeded to modify a stand-up work station for Bergen by raising the CRT, keyboard and multileaf to a height that she says was "comfortable to (petitioner)." She did this in part by placing six or seven reams of paper under the computer screen to raise it to eye level. Even so, Bergen left work early that day because of pain. The next day, a nurse in the Benefits Administration Department telephoned Leynes and advised her that if Bergen had a disability, federal law required that his work station be modified. During a telephone conference call with the nurse and Leynes on February 5, Leynes' supervisor stated that if the company ordered special furniture for Bergen, it would have to accommodate every employee who had an injury. He raised the possibility of "effect(ing) a job change" for Bergen and changing the job requirements for an operator to exclude all persons over six feet. Finally, he told the nurse to advise her Department that he did not want to order the special equipment and set a precedent. On February 4 petitioner again visited Dr. Freeman, who agreed to prepare a note suggesting that certain medical restrictions be imposed. The note stated that, based upon the therapist's recommendations and Dr. Freeman's own evaluation, petitioner should "be placed in a work environment where he can frequently change positions," the computer terminal should be placed at eye level, his chair should be raised high enough to allow partial weight bearing by the lower extremities, and "the keyboard should be positioned so as to avoid continued cervical flexion and rotation while operating the keyboard and viewing the terminal screen simultaneously." Dr. Freeman also recommended that Bergen be allowed ten minute breaks every thirty minutes during working hours. This note was faxed by Dr. Freeman to the Benefits Administration Department. The same day, Bergen telephoned a representative of that Department, Kathy Green, who told him a ten minute break was "excessive" but he would be authorized to take five minute breaks every thirty minutes. Petitioner returned to work on February 5 and 6 and was counseled for poor attendance by his immediate supervisor. On those two days, he was given five-minute breaks every thirty minutes. On Monday, February 8, however, Leynes terminated the breaks since she says the Benefits Administration Department had never sanctioned them. When Bergen's union representative made a suggestion to Leynes that Bergen work only four hours per day, Leynes replied that such a restriction would have to come from his doctor. The next day, February 9, petitioner visited Dr. Freeman and obtained a "disability certificate" with the following restriction: "pt to work only 4 hours per day" in "light" as opposed to regular work duties. In a follow-up letter prepared on February 10, Dr. Freeman also suggested that BellSouth investigate the possibility of changing petitioner's job duties to provide him more mobility and less stress. The same day, a BellSouth nurse who observed Bergen at work commented that he was working in an incorrect job because of his size. The certificate of disability was given to Leynes, who referred it to the Benefits Administration Department for evaluation. That Department advised Leynes that such a restriction was not a "reasonable accommodation" under the Americans with Disabilities Act, it would reduce the productivity of the employee, and she should not honor the restriction. After returning to work on February 11 for one day, petitioner took "excused time and vacation days" and was absent for six days. During this absence, he had a second MRI taken which reconfirmed his earlier diagnosis. On February 17, he returned to work. On February 18, he left work due to pain and was taken to the emergency room of a local hospital. On the same day, he was given a written disciplinary warning by Leynes for unimproved attendance. In conjunction with a worker's compensation claim filed by Bergen against BellSouth on February 18, he prepared an affidavit which stated in part that "(o)n February 9, 1993, my desk was raised eight inches. My computer, keyboard and chair were not raised." A copy of the affidavit was given to Leynes. While absent on and off between February 3 and February 25, he continued to be paid on what is known as temporary partial disability. On February 23, Dr. Freeman prepared another letter recommending that petitioner refrain from working at his current operator job until he could be evaluated by an orthopedic surgeon for reconstructive surgery versus continuation of conservative therapy. This letter was given to Leynes. As it turned out, the orthopedic surgeon agreed with the continuation of conservative therapy as previously recommended by Dr. Freeman, and this opinion is embodied in a letter from the surgeon dated March 18, 1993. Finally, on March 1, 1993, Bergen's personal physician prepared a letter stating that prolonged standing by Bergen had caused "significant varicosities and leg edema" which would get worse without measures to correct the prolonged standing. With the approval of the Benefits Administration Department, Leynes began making modifications and ordering new equipment in order to accommodate petitioner's disability. Specifically, on February 9 the desk at one operator position was raised to thirty-two inches, a chair with a higher seat and larger seat pad was obtained as an interim measure, and a new, special adjustable chair was ordered on May 5. A glare-proof screen was obtained on February 16, the computer terminal was raised by placing several reams of paper under it, and the keyboard was placed at a forty-five degree angle. Finally, BellSouth created a modified stand-up position specially fitted for petitioner to allow him to alternate between a sitting and a standing position. Because these changes had not been completed by late February, and Bergen had missed his employer-arranged appointment with an ergonomics specialist as a follow-up to evaluate the changes to the work station, Bergen continued to be paid while on leave in February. On March 2, 1993, petitioner filed a complaint of discrimination with the Commission alleging that (a) he was disciplined for absences relating to his disability, (b) he was denied reasonable accommodation in his position, and (c) he was discriminated against due to his disability and sex. In his petition for relief filed on September 22, 1993, however, he alleged only that BellSouth "did not make requested medical modifications or adhere to (his) medical restrictions like they have for other employees with disabilities in (his) department." As clarified by counsel at hearing, petitioner now contends that BellSouth failed to reasonably accommodate his handicap, which prevented him from working a regular, full-time job. After the initial complaint of discrimination was executed by petitioner on February 25, 1993, he completely stopped working. At that time, Bergen was offered the opportunity to work only four hours per day, but he declined this offer saying he wanted to be paid disability leave for the other four hours and could not afford a part-time job. Thereafter, Bergen continued to be paid for his first seven days of absence, but he was then placed on furlough, which is a non-pay code, since he was not authorized by the Benefits Administration Department to be on sick leave. While absent from work in March, Bergen obtained a statement from a physical therapist recommending that he change his work position every thirty minutes and be granted a ten minute break twice an hour. In early April 1993, petitioner was at risk of being dropped from the payroll due to his excessive absences. Pending further medical evaluation, and the opportunity to fully assess petitioner's medical condition, and perhaps motivated by the discrimination complaint, BellSouth decided to temporarily loan Bergen to its engineering department where he served as an engineering clerk from April 12 until November 1993. Prior to then, BellSouth had not seriously explored whether there were other positions to which petitioner could be transferred. In any event, this satisfied petitioner's earlier request that he be temporarily placed in another job which allowed him to be more mobile. During one week in July, however, Bergen temporarily worked half a day as an operator and the other half as an engineering clerk. By then, the modifications to the work station were in place. Afterwards, Leynes asked for his comments on the work station modifications and Bergen complained that his operator desk was still not high enough, the computer screen was not at eye-level, and the keyboard needed to be moved. Also, there was no longer a standing position available for him. At the recommendation of Dr. Freeman, on August 18, 1993, petitioner was given an independent medical evaluation by Dr. Oregon K. Hunter, Jr., who specializes in clinical medicine rehabilitation. His diagnosis was cervical spondylosis without evidence of myeleopathy and possible bilateral cervical radiculopathy, which corresponded to Dr. Freeman's diagnosis. Because Dr. Hunter was unable to assess the modifications to Bergen's work station, he recommended that a further evaluation of Bergen's work station be made by an occupational therapist, and until that time, he be given "continued alternate duty." Also, he concluded that Bergen "will eventually be able to return to his operator duties, however, he may continue to experience pain and radicular symptoms even in a modified work station." BellSouth honored Dr. Hunter's recommendation and continued to allow Bergen to work as an engineering clerk pending the outcome of the work site evaluation. On September 24, 1993, a work site evaluation was conducted by an occupational therapist who evaluated the best suited position for Bergen given his height and the appropriate placement of the video display terminal (VDT). The therapist recommended that when Bergen returned to his work station, the following modifications be made: Two reams of paper be kept under the VDT: A neoprene wrist support be provided to the leading edge of the table work surface on which Bergen could rest his forearms; and A foot rest be provided to allow Bergen to rest his feet. This report was forwarded to the Benefits Administration Department, and copies were also given to Drs. Freeman, Hunter and Kern. In early November 1993, the Benefits Administration Department determined that petitioner was medically capable of performing in his job as an operator with the workplace modifications suggested in the most recent work site evaluation. That decision was made in consultation with Dr. Kern, who reviewed the medical information regarding Bergen, including the results of the independent medical examination by Dr. Hunter. Accordingly, on November 11, 1993, Leynes advised petitioner by letter that beginning November 28, 1993, he would be reassigned to his regular position in operator services. The letter noted that BellSouth had made the following accommodations: An adjustable sitting position with VOT height and wrist rest additions specified in the job analysis; A chair ordered specifically for his frame size; A foot rest; A glare-proof screen for his video display terminal; and Use of a standing position as needed for his comfort. The letter added that those accommodations would allow him to perform his job without special hours or work breaks. Petitioner was officially reassigned to his operator position on November 28, 1993. Because Bergen used vacation leave, his first day back at work was actually on December 18, 1993. Three days later, Bergen says he again started "having problems," and the same day he visited Dr. Freeman who prepared another disability certificate certifying that petitioner could only return to "light" work duties subject, however, to the restrictions as outlined in the physical abilities assessment performed on March 30, 1993. The earlier assessment had recommended part-time, light duties. When the certificate was presented to Leynes, she said she could not honor those restrictions since the Benefits Administration Department had not approved the same, and he must continue working a full tour. Because of continuing complaints by Bergen, BellSouth made arrangements for a functional capacity test to be given on December 28, 1993, by the Medical Rehab and Sports Medicine Center in Jacksonville to determine if permanent medical restrictions or limited work hours were appropriate. The report's assessment concluded in part that Bergen was functional to return to work within his demonstrated capacities; restricted heavy to very heavy labor category with unrestricted positional tolerances, although sitting as well as prolonged upper extremity forward reaching produces the greatest amount of pressure on the disc. His symptoms would be likely to increase with these positions/job tasks. In plainer terms, this meant that because petitioner's job category (operator) was considered "light," and the assessment indicated that Bergen could perform a job in the heavy labor category without restrictions, he could return to a modified work station without restrictions. In an addendum to the report issued on February 28, 1994, it was pointed out that "stationary static positions can result in limited flow of fluid through spinal facet joints and disc resulting in stiffness and decreased nutrition to joints and discs." Also, a recommendation was made that Bergen "frequently change position as frequently as possible, (i. e., every 30 minutes) and maintain an active exercise program." Otherwise, there was no impediment to Bergen assuming his regular duties. A copy of this report was given by BellSouth to Dr. Freeman, who was asked to consider the report in light of his most recent disability certificate prepared on December 21, 1993, and petitioner's continuing "complaints," even after modifications to his work station had been made. Based upon the results of this latest test, Dr. Hunter concluded in a letter dated March 15, 1994, that petitioner should "be released to work based on the level of function that he demonstrated within that evaluation." In a second letter dated March 29, 1994, he concurred with a recommendation of Dr. Freeman that "job duties which require the use of (petitioner's) arms held in an extended position would probably exacerbate his symptoms and this would best be modified appropriately." As clarified at hearing, Dr. Hunter explained that petitioner should not extend his arms straight out while working, and he could not sit in one place continuously for hour after hour without being able to change positions. With proper ergonomic modifications and a certain degree of mobility, however, Dr. Hunter was of the opinion that petitioner could assume his regular job responsibilities without exacerbating his condition. Dr. Hunter further concluded that the physical condition was permanent, and that petitioner would likely experience pain the rest of his life, no matter what he did at work. Although Dr. Freeman continued to recommend ten minute breaks every hour "if possible," he basically concurred in Dr. Hunter's ultimate recommendation and deferred to that doctor's judgment in terms of restrictions and limitations. At the same time, Dr. Kern concluded that ten minute breaks every hour are not medically necessary because petitioner's problem is in the neck and only neck mobility is required. According to Dr. Kern, petitioner has aggravated his condition by using improper work techniques at his work station, such as sitting with his arms outstretched. If this technique is corrected, petitioner should eliminate many of his problems. On March 2, 1994, the Benefits Administration Department advised Bergen by letter that in view of the various medical evaluations and modifications to his work site, permanent medical restrictions, including a ten minute break every thirty minutes, were not appropriate. It is noted that since December 1993, Bergen had been given ten minute breaks every thirty minutes even though such breaks had not been approved by the Benefits Administration Department. The letter added that this conclusion was based on the fact that he "demonstrated no inability to function in a heavy duty job, let alone a sedentary job such as (his) present assignment." This information was reconveyed to Bergen in a meeting with Leynes on March 28, 1994. At the time of hearing, BellSouth had only four operator vacancies in Gainesville and no vacancies in that office's engineering department. This is because there is relatively little employee turnover in the Gainesville office. Since 1993, petitioner has had on file requests (bids) to transfer to a position as an outside plant technician in Daytona, Gainesville, and Lake City, engineering clerk in Gainesville, and service technician in Gainesville. However, none of these positions have been open. In April 1994 the company offered to transfer Bergen to a vacant service technician position in Dade County but he declined to accept a transfer to that location. Since March 9, 1994, and through the time of hearing, all of Bergen's absences from work have been without pay and coded as "FMLA" (Family Medical Leave Act). Under that federal law, which became effective on February 5, 1994, covered employees are authorized absences due to medical reasons of up to ninety days without pay. Therefore, by now, petitioner's authorized absences have probably ended. In challenging the accommodations offered him, Bergen asserts that other BellSouth employees, all of whom happen to be female, were given accommodations consistent with the recommendation of their doctors after suffering injuries and illnesses. Such accommodations included part-time work and reassignment to other jobs within the company. All of these cases, however, are distinguishable from Bergen's situation. For example, Patricia Peres, formerly an operator but now a sales representative, received special accommodations after she suffered three ruptured discs and misaligned her pelvic area in an automobile accident in May 1989. Because of the severity of these injuries, Peres was absent from work for two months and then worked on a part- time basis for two weeks after returning. She reinjured her neck in another automobile accident in February 1994. At her doctor's request, and without requiring a second medical opinion, BellSouth allowed Peres to work only half days and take a five-minute break every thirty minutes until she fully recuperated. Another operator, Judy LaSalle, had surgery in 1991 on her arms due to Degarian's disease and was forced to wear casts for five months on both arms from shoulder to wrist. After she returned to work, BellSouth agreed to her doctor's suggested weight lifting limitations, it placed ergoarms on her desk to rest her arms, and it allowed her to work a four-hour shift the first week, a six-hour shift the second week, and a seven and one-half hour shift the third week. Also, it authorized her to take work breaks every thirty or forty-five minutes. She is now back to work full time without restrictions. Petitioner also noted that a former operator, Rosemary Jackson, was given medical restrictions in 1992. In that case, the employee had Crohn's Disease (an enlargement of the intestines) which necessitated numerous restrictions, and Jackson died a short time later. Finally, Linda Davis, a service representative, had a rheumatoid arthritis bilateral hip and was unable to climb stairs to her permanent job. Because of this condition, she was temporarily loaned for five months to another department where she was able to work on the ground floor. Although Bergen continues to experience some degree of pain, his latest functional capacity evaluation places him in the "very heavy labor" category without restrictions. This means that he can engage in that category of work without medical restrictions. As a consequence, his present ability to engage in major life activities, such as work, is not substantially limited by his medical condition. In some measure, however, he does not enjoy the full and normal use of his physical facilities, and Dr. Hunter has established that the condition is permanent. Therefore, under this latter test, Bergen is a person with a handicap.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 22nd day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5814 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 15. 4. Covered in conclusions of law. 5-7. Partially accepted in finding of fact 2. 8. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 6. 11. Partially accepted in finding of fact 7. 12-13. Partially accepted in finding of fact 3. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17-18. Partially accepted in finding of fact 9. 19. Partially accepted in finding of fact 11. 20. Partially accepted in finding of fact 12. 21. Rejected as being unnecessary. 22-23. Partially accepted in finding of fact 12. 24. Partially accepted in finding of fact 13. 25-26. Partially accepted in finding of fact 12. 27. Partially accepted in finding of fact 13. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 13. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 13. 32. Partially accepted in finding of fact 16. 33-34. Partially accepted in finding of fact 17. 35. Partially accepted in finding of fact 15. 36. Rejected as being unnecessary. 37. Partially accepted in finding of fact 17. 38. Partially accepted in finding of fact 1. 39. Partially accepted in finding of fact 20. 40-42. Partially accepted in finding of fact 21. 43-44. Partially accepted in finding of fact 24. 45. Partially accepted in finding of fact 45. 46-47. Partially accepted in finding of fact 23. 48. Rejected as being cumulative. 49. Partially accepted in finding of fact 18. 50. Partially accepted in finding of fact 23. 51. Partially accepted in finding of fact 26. 52. Rejected as being unnecessary. 53. Partially accepted in finding of fact 26. 54-58. Partially accepted in finding of fact 28. 59. Partially accepted in finding of fact 30. 60-62. Partially accepted in finding of fact 29. 63. Rejected as being unnecessary. 64. Partially accepted in finding of fact 30. Respondent: Partially accepted in finding of fact 2. Rejected as being unnecessary. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in findings of fact 4 and 6. Partially accepted in findings of fact 8 and 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 20. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 25. Partially accepted in finding of fact 16. Partially accepted in finding of fact 26. 15-16. Partially accepted in findings of fact 23 and 24. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 George F. Schaefer, Esquire The Liberty House 1005 S. W. 2nd Avenue Gainesville, Florida 32601-6116 Paul T. Stagliano, Esquire Stephen T. Breaux, Esquire Suite 4300 675 West Peachtree Street, N. E. Atlanta, Georgia 30375
The Issue The issue to be resolved is whether Petitioner, Emma J. Brown, was subject to discrimination in her employment by Respondent for the reasons alleged in her Petition for Relief.
Findings Of Fact Based upon the demeanor of the witnesses while testifying, exhibits admitted in evidence, and stipulations and argument of the parties, the following relevant, material, and substantive facts are found: Petitioner, Emma J. Brown (Ms. Brown), an African- American female, began working for Respondent, Sunbelt Health Care (Sunbelt), a nursing home in Zephyrhills, Florida, as a Certified Nursing Assistant (CNA) on or about February 11, 2002, after an interview by Barbara Derby-Bartlett (Ms. Derby- Bartlett), director of nursing, who made the decision to hire Ms. Brown. Margaret Levesque (Ms. Levesque), a white female, was hired as a CNA by Sunbelt in June of 2002. A CNA's duties include assisting the nursing staff in overall patient care. At the time of their hire, all new employees were required to attend an orientation process. During orientation, new employees, including Ms. Brown, were given a copy of Sunbelt's employee handbook and other printed materials, including Sunbelt's "Call-Off Guides" policy. The "Call-Off Guides" policy specifies the means and method employees are required to follow when they can not be present for their scheduled work shifts. The policy also informs the new employee that repeated absenteeism will result in immediate dismissal. Sunbelt is a 24-hour, full-care facility with residents located in both its north side wing and south side wing. Employees work on both wings. Sunbelt used two shifts, the day shift and the night shift, to provide residents with 24-hour care and service. Ms. Brown testified that at the time of her hire, she informed Sunbelt that she could not work the day (first) shift because she had another job. Her request to work the night (second) shift was granted. On February 22, 2002, after 11 days of employment, Ms. Brown suffered an on-the-job injury to her wrist. Ms. Brown re-injured her wrist on March 22, 2002, and suffered an on-the- job back injury on April 7, 2002. Ms. Brown, through counsel, filed workers' compensation claims for her on-the-job injuries. Ms. Brown's treating physician placed her on work restrictions, limiting her duties to no bending and no lifting over 20 pounds. On or about May 24, 2002, Ms. Brown returned to work and presented her work restrictions, and Sunbelt assigned Ms. Brown to the night shift to perform light-duty work assignments. The light-duty work assigned to Ms. Brown consisted of answering residents' call lights, checking their vital signs, assisting residents with their meals (passing trays), and replenishing their water supplies on both the north and south wings. Ms. Brown requested that Sunbelt change her work schedule to day shift and allow her to work five consecutive days with weekends off. This request was denied. During the pertinent time, two other CNAs, Ms. Levesque and Shirley Manley (Ms. Manley), were also on light-duty. Ms. Levesque and Ms. Manley, white females, performed light-duty work assignments on both the north and south wings similar to those performed by Ms. Brown. According to Ms. Brown, Ms. Levesque worked weekdays for two consecutive months with no weekend duty, and she was not allowed to do likewise. On June 6, 2002, Sunbelt transferred Ms. Brown from night shift to day shift. Ms. Brown maintained that there is "more light-duty work" during the day shift than during the night shift, and by keeping her on the day shift, her workload was increased when compared to CNAs working during the night shift. Ms. Brown filed her claim of discrimination, and Sunbelt, by and through counsel, attempted settlement of Ms. Brown's claim of discrimination without success. Ms. Brown maintained that the proffered settlement did not justify the treatment she received. Sunbelt presented the testimony of Ms. Levesque, who was hired in June 2002 as a CNA but was initially assigned to the duty and function of "staffing coordinator." The staffing coordinator is a day shift employee whose primarily duties consisted of preparing CNAs' work schedules and identifying and securing replacements for those CNAs who called in and, for whatever reasons, did not or could not report for duty as scheduled. During her staffing coordinator assignment, Ms. Levesque also assisted CNAs in their duties, but was assigned light-duty with a 20-pound lifting restriction. Her CNA duties include passing food trays during breakfast, lunch, and dinner; replenishing water; and anything that did not require her to physically pick-up and/or lift a resident. In or about mid-August of 2002, Ms. Levesque's schedule changed, and she was required to work every other weekend. On several occasions, Ms. Levesque and Ms. Brown worked on the same shift, but not on the same wing. Ms. Derby-Bartlett testified that upon receipt from an employee's physician detailing the employee's limitations, she would work within those specific limitations in assigning CNAs to light-duty. According to Ms. Derby-Bartlett, light-duty work assignments are less during the night when residents are asleep and more during the day when residents are awake. After her appointment to the position of director of nursing, Ms. Derby-Bartlett became aware that Ms. Levesque was not working every other weekend and informed Ms. Levesque that she would be scheduled to work every other weekend. Ms. Levesque's request for a couple of weeks to make adjustments was granted, and she thereafter was scheduled to work every other weekend. Ms. Derby-Bartlett confirmed that Ms. Brown was assigned light-duty work assignments on June 6, 2002, and Ms. Brown was a no-show for work. On July 3, 2002, Ms. Brown was assigned light-duty, and she called in as a no-show. On July 4, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. On July 5, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. Ms. Derby-Bartlett contacted the staffing person on each day Ms. Brown called in and on each day Ms. Brown was a no- show, confirming the accuracy of the reports. Ms. Derby-Bartlett contacted Ms. Brown regarding her no-calls and no-shows and informed her of Sunbelt's policy of termination for repeated absenteeism. Ms. Brown, believing her doctor had called Sunbelt on one of the days she was a no-show, was mistaken because no doctor called. On July 5, 2002, Ms. Derby-Bartlett completed Sunbelt's disciplinary form to terminate Ms. Brown due to her several no-calls and no-shows, in violation of Sunbelt's policy, and forwarded her recommendation to Maria Coddington, Sunbelt's unit manager. Ms. Derby-Bartlett testified that since her appointment as director of nursing, the no-show/no-call termination policy has been consistently applied, and she was not aware of any employee who had been no-show/no-call for two consecutive days who had not been terminated. Five months after hiring Ms. Brown, Ms. Derby-Bartlett terminated her. Sunbelt's employee handbook's "Call-Off Guides" policy regarding absenteeism provides, in pertinent part that: "if employees do not call in or do not show up for work for two consecutive days or three nonconsecutive days, it is grounds for termination." Each employee, as did Ms. Brown, signed individual employment documents attesting to having received a copy of Sunbelt's "Call-Off Guides" policy when hired. Ms. Brown was terminated because of her violation of Sunbelt's policy regarding two or more absenteeism without notice to her employer and her repeated failure, albeit her belief that her physician was going to call on her behalf and did not do so, to timely inform her employer of her absence from scheduled duty. Ms. Brown's termination by Sunbelt was based on her violation of their employee work attendance policy and not because of her race and/or ethnic origin. Ms. Brown failed to present a prima facie case of discrimination based on her race as alleged in her complaint of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Emma J. Brown. DONE AND ENTERED this 20th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 20th day of August, 2004. COPIES FURNISHED: Emma J. Brown 38723 Barbara Lane Dade City, Florida 33523 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan M. Gerlach, Esquire Adventist Health System-Legal Services 111 North Orlando Avenue Winter Park, Florida 32789 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner has cause as set forth in the notice of specific charges to order that the Respondent's professional services contract not be renewed.
Findings Of Fact At all times pertinent to this proceeding, the Petitioner was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools with the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. North County Elementary School (North County) and Myrtle Grove Elementary School (Myrtle Grove) are public schools in Dade County, Florida. Respondent graduated from North Eastern Illinois University in 1978. She began her employment with the Petitioner at North County at the beginning of the 1987/88 school year. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional services contract. Teachers employed by the Petitioner are evaluated pursuant to the Teacher Assessment and Development System (TADS). This system provides for periodic observations of a teacher's performance that is followed by an evaluation of that performance. The evaluator records what he or she considers to be observed deficiencies in the teacher's performance and provides a plan, referred to as a prescription, for performance improvement. At all times pertinent to this proceeding, the TADS method was used to evaluate the Respondent's performance. Respondent taught at North County during the 1987/88 school year. The principal of North County for that school year was Gertrude Pope. Ms. Pope evaluated Respondent's performance based on the TADS method and rated her overall performance as acceptable. Ms. Pope testified that Respondent had difficulty in classroom management during the 1987/88 school year, and that she tried to help Respondent improve her classroom management by giving her materials, having her observe other teachers who were good in classroom management, and by having her view a videotape on assertive discipline. Ms. Pope wanted Respondent to develop and use in her classroom an assertive discipline plan, which consists of strategies to maintain discipline in the classroom and specifies behavioral standards and the consequences for failing to adhere to those standards. Respondent's TADS assessment for the 1988/89 school year was acceptable. In August 1989, Dr. Ruthann Marleaux became the principal at North County, a position she retained at the time of the formal hearing. On October 27, 1989, Respondent's left knee and left instep were injured at school when a child accidentally stepped on her foot. After that injury, Respondent had a significant number of absences from the classroom caused by pain and the buildup of fluid in her left knee. In February, 1990, Respondent underwent surgery to repair the damage to her knee and was placed on worker's compensation leave. Following that injury, Respondent used a cane or crutches to walk. On May 11, 1990, Respondent returned to her teaching duties at North County. This return to work was approved by the Petitioner's worker's compensation department. Following a conference with the Respondent, Dr. Marleaux, and a coordinator of the worker's compensation department, it was agreed that certain modifications would be made to accommodate Respondent's knee problem. Dr. Marleaux arranged for someone to escort the children in Respondent's class back to the classroom after lunch and after physical education. An aide was assigned to assist Respondent during the first week of her return to work. Respondent's TADS assessment for the 1989/90 school year was acceptable. Following several days of absences towards the beginning of the 1990/91 school year, Dr. Marleaux notified Respondent by memorandum dated October 10, 1990, that her absences were adversely impacting the educational environment and the progress of the children assigned to her class. The memorandum contained the following directives pertaining to future absences: Intent to be absent must be communicated directly to me or in my absence, Mr. Peter Harden, assistant principal. This is in accordance with procedures delineated in the site book. Absences for illness must be documented by your treating physician and a written medical note stating an unconditional medical release to return to full duties presented to me upon your return to the site. Site procedures for provision of lesson plans and materials for substitute teacher when absent must be adhered to in the event of any absence from the site. If it is determined that future absences are imminent, leave must be requested and procedures for Board approved leave implemented. There are 180 days in a school year. During the 1990/91 school year, Respondent was absent a total of 101 days. Despite those absences, Respondent's TADS assessment for the 1990/91 school year was acceptable. Respondent underwent surgery again on her left knee in March, 1992. After another worker's compensation leave, Respondent was assigned a teaching position at Myrtle Grove under the supervision of Cecil Daniels, the school principal. Petitioner was advised that, as of June 4, 1992, the following restrictions were placed on Respondent's activities: No weight bearing for more than 20 minutes at one time on the left knee. No squatting. No kneeling. No climbing. No lifting more than 25 pounds at one time. The duties assigned to Respondent were within the medical restrictions delineated by Respondent's doctor. On June 11, 1992, Respondent refused to assume her assigned duties at Myrtle Grove. Respondent asserted that she was entitled to light duty employment and that she had been assigned too many children. As a result of Respondent's refusal, Mr. Daniels dismissed her for the day and employed a substitute teacher for the day. On June 12, 1992, Mr. Daniels held a conference-for-the-record with Respondent concerning this incident. There was no evidence as to Respondent's TADS assessment for the 1991/92 school year. 1992/93 SCHOOL YEAR Respondent was again assigned to Myrtle Grove for the beginning of the 1992/93 school year. Shortly after school began, Mr. Daniels discovered that Respondent had failed to follow school procedures at the end of the 1991/92 school year pertaining to the records that are kept for students. Mr. Daniels had a conference for the record with Respondent on September 30, 1992, at which he discussed this deficiency with her and also discussed with her two concerns he had about her class management. One concern was the result of a complaint he had received from a parent who reported that Respondent had not attended to an injury to a student. The second concern was that there had been several fights between students in her class. On or about October 8, 1992, Respondent was transferred from Myrtle Grove back to North County. Mr. Daniels had asked the district office to make this transfer. By memorandum dated October 16, 1992, Dr. Marleaux advised Respondent in writing that the directives pertaining to absences from the work site as set forth in her memorandum dated October 10, 1990, were still in effect. Petitioner maintains an employee assistance program (EAP) as a resource for employees who have personal or family problems that may be impacting an employee's job performance. On October 23, 1992, Dr. Marleaux referred Respondent to the EAP because of marked changes in Respondent's mood. Respondent had been seen crying in the classroom and in the teacher's lounge. She was visibly upset and physically shaking. Respondent testified that she was seen by a mental health professional as a result of that referral, but there was no evidence that Respondent benefited by the referral. Respondent testified that she did not think she needed help at the time the referral was made. Respondent was formally observed in the classroom by Dr. Marleaux on October 26, 1992. There was no evidence that the timing of this observation, in light of Respondent's behavior that resulted in the EAP referral, was inappropriate. Dr. Marleaux's observation was between 11:30 a.m. and 12:20 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance as unacceptable in the category of classroom management. Respondent began the instructional activities of the class 20 minutes late and ended the instruction 15 minutes early. There were a number of off-task students to whom Respondent did not respond either verbally or non-verbally. Although Respondent had classroom rules, it was Dr. Marleaux's observation that the behavioral expectations had not been made clear to the students and that Respondent was not implementing her assertive discipline plan. There was a contention that Dr. Marleaux was overly critical in her observations of Respondent. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on October 26, 1992. Dr. Marleaux's observation report included a prescription to remediate Respondent's unsatisfactory performance. This prescription consisted of a number of assignments that Respondent was to complete by a date certain. She was to observe a teacher with a successful assertive discipline plan, develop five strategies used by that teacher to improve classroom management, and review her assertive discipline plan with the assistant principal. She was also to complete activities in the TADS Prescription Manual and to develop lesson plans which required full periods of instruction. The respective deadlines for completing these assignments were between November 6 and November 16, 1992. These prescribed assignments are found to be reasonable and formulated to assist Respondent to improve her job performance. Peter Harden was assistant principal at North County during the 1992/93 school year. Mr. Harden formally observed Respondent in the classroom on November 24, 1992. His observation was between 1:30 p.m. and 2:11 p.m. while Respondent was teaching her third grade class mathematics. Following his observation, Mr. Harden prepared an observation report that rated Respondent's performance in classroom management as unacceptable. Mr. Harden observations were similar to those of Dr. Marleaux during her observation the previous month. Mr. Harden observed that off-task students were neither verbally nor non- verbally redirected. Respondent began the instructional activities 20 minutes late and ended the lesson 19 minutes early. Respondent did not make behavioral expectations clear to the students. The students did not appear to be aware of the class rules and regulations. The observation report contained prescribed assignments that Mr. Harden believed would help Respondent improve her deficiencies in classroom management. A deadline of December 14, 1992, was set for Respondent to complete these assignments. Based on the evidence presented, including the demeanor of the witnesses, it is found that Mr. Harden fairly and accurately evaluated Respondent's performance on November 24, 1992. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 14, 1992, a midyear conference-for-the-record was conducted by Dr. Marleaux with the Respondent and her union representative in attendance. Respondent's TADS evaluations following the formal observations by Dr. Marleaux in October, 1992, and by Mr. Harden in November, 1992, were discussed. Respondent had not completed her prescribed assignments at the time of this conference because she had been ill. Dr. Marleaux extended the deadlines for completing the remaining assignments. Respondent was given notice that if she ended the 1992/93 school year in a prescriptive status, there could be possible employment consequences such as a return to annual contract status or termination of employment. During the conference, Respondent asked permission to observe a handicapped teacher. In response to that request, Dr. Marleaux arranged for Respondent to observe a teacher at Kelsey Pharr Elementary School who had to use crutches to walk. Respondent was formally observed in the classroom by Dr. Marleaux on January 13, 1993, between 12:55 p.m. and 2:00 p.m. while Respondent was teaching her third grade class mathematics. Following her observation, Dr. Marleaux prepared an observation report that rated Respondent's performance in the following areas as being unacceptable: preparation and planning, classroom management, and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning based on her observation that Respondent did not follow at least half of her lesson plan as required by TADS. Dr. Marleaux rated Respondent as unacceptable in classroom management based on her observation that out of a one hour lesson plan, Respondent taught for only 20 minutes. Dr. Marleaux observed that there was a lot of wasted class time. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction based on her observation that Respondent's teaching methods confused the students, she did not use the media resources skillfully, and she did not provide feedback to the students about their performance deficiencies. Respondent did not make any adjustment in her instruction, despite the confusion of the students. The observation report prepared by Dr. Marleaux following the observation in January 1993, contained prescribed assignments that she believed would help Respondent improve the deficiencies noted in her report. She was to write detailed lesson plans and turn them in to the principal weekly. She was to prepare all activities prior to teaching the lesson. She was to utilize the instructional activities recommended by the textbook. She was to follow the instructional methods outlined in the teacher's edition of the textbook. She was to observe a master teacher. These assignments were to be completed by January 29, 1993. Dr. Marleaux fairly and accurately evaluated Respondent's performance on January 13, 1993. The assignments prescribed were reasonable and formulated to assist Respondent improve her job performance. At the times pertinent to this proceeding, Norma Bossard was Petitioner's Executive Director for Foreign Language Arts and Reading and an experienced TADS evaluator. Ms. Bossard and Dr. Marleaux simultaneously observed Respondent in her classroom on February 19, 1993, and thereafter independently evaluated her performance. This review, referred to as an External Review, was during a language arts lesson between 10:45 a.m. and 12:30 p.m. Both administrators rated Respondent unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Respondent was rated as unacceptable in preparation and planning because she did not follow her lesson plan. Respondent was rated as unacceptable in knowledge of subject matter because she did not develop ideas and information in a meaningful and orderly manner and because there was a lot of wasted class time. Respondent was rated as unacceptable in techniques of instruction because she did not provide feedback to the students about their performance deficiencies and strengths. Out of 23 students, only two students completed the assignment. Respondent was oblivious that students were cheating. Respondent was rated as unacceptable in assessment techniques because she did not examine work completed by students and she did not monitor whether students were learning. Respondent was prescribed activities in an effort to aid her in remediating her unsatisfactory performance. She was given a prescribed lesson format for language arts. She was to observe a seasoned teacher. She was given a series of books called "Teaching and Learning the Language Arts". Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux and Ms. Bossard fairly and accurately evaluated Respondent's performance during their external review on February 19, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On March 29, 1993, the Superintendent of Schools notified Respondent in writing that her performance during the 1992/93 school year had been unacceptable in the following categories: preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. She was advised that the failure to correct these performance deficiencies prior to April 13, 1994, could result in the termination of her employment at the close of the 1993/94 school year. In the spring of 1993, Respondent entered Charter Hospital, a psychiatric facility, for deep depression and anxiety. She was absent for the remainder of the school year since she was physically and mentally unable to work. On April 2, 1993, Dr. Marleaux again notified Respondent that her absences were adversely affecting the educational environment and academic progress of her students. Respondent was again directed to communicate her absences to the principal or assistant principal, to document her absences by a medical note from her treating physician, to provide a medical release to return to full duties, to provide lesson plans for the substitute teacher when she is absent, and to take leave when future absences appeared imminent. During the 1992/93 school year, Respondent was absent 78-1/2 days. On May 18, 1993, Respondent was notified of her unacceptable annual evaluation by memoranda in lieu of a conference-for-the-record because she was on leave. Respondent's overall evaluation for the 1992/93 school year was unacceptable. She was rated unacceptable in the categories of preparation and planning, knowledge of subject matter, techniques of instruction, and assessment techniques. Because she had failed to complete the assignments that had been assigned to her in an effort to correct the deficiencies in her unacceptable performance, Respondent's salary level was frozen at the end of the 1992/93 school year so that she did not receive any raise for the 1993/94 school year. 1993/94 School Year Respondent was cleared through the Office of Professional Standards to return to work at North County on August 25, 1993. The medical restrictions delineated by her doctor were implemented. In an effort to reduce the amount of walking she would have to do, Respondent was given a parking space close to the entrance to her classroom and she was given assistance in taking her students to and from lunch, to the library, and to the physical education field. Respondent was also given the same directives pertaining to absences that had been given to her on previous occasions, including in Dr. Marleaux's memorandum of October 10, 1990. Respondent requested permission to observe a teacher in a wheelchair. This request was denied because Respondent's doctor had prohibited Respondent from being in a wheelchair. The doctor preferred that she walk, with crutches if necessary, to reduce muscle atrophy. Beginning September 8, 1993, Respondent was absent again for several weeks. On September 22, 1993, Dr. Marleaux notified Respondent that the deadline for her to complete her prescribed assignments would be extended until October 8, 1993. This extension benefited Respondent since it gave her more time to remediate her deficiencies. In October, 1993, Respondent requested, through her treating physician, that she be transferred to another school, that she be given vocational rehabilitation, or that she be given a leave of absence. These requests were denied. Although Respondent argued that the denial of these requests was unreasonable, the evidence in this proceeding failed to establish that contention. Petitioner made arrangements for Respondent to have a full- time classroom aide for the remainder of the year. After a full-time aide was assigned for Respondent, Dr. Marleaux required the Respondent's aide to leave the room during formal observations. Respondent asserts that this was unfair and evidences Dr. Marleaux's bias against the Respondent. This assertion is rejected since the Petitioner established that the removal of the aide during a formal observation is standard procedure and allows the students to focus on the teacher without being distracted by the presence of the aide. On November 2, 1993, Respondent was formally observed in the classroom by Joyce Daniels, an assistant principal at North County. This observation was during a fourth grade math class and was between 9:00 a.m. and 10:10 a.m. Based on her observations, Ms. Daniels rated Respondent as being unacceptable in the following categories: classroom management and techniques of instruction. Ms. Daniels rated Respondent as being unacceptable in classroom management based on her observation that Respondent appeared to be unaware of certain students who were being disruptive and others who were not on task. Respondent did not redirect the off-task students either verbally or non- verbally. She was not following her assertive discipline plan. Ms. Daniels rated Respondent as being unacceptable in techniques of instruction because she did not use calculators as recommended in the teacher's manual and because she wrote on the board in a manner that the students were unable to see. Ms. Daniels prescribed assignments to help Respondent improve her unacceptable performance. She was to observe two of the teachers at the school and she was to view the assertive discipline plan videos and review the assertive discipline workbook. She was to meet with the media specialist for help with the use of media. Based on the evidence presented, including the demeanor of the witnesses, it is found that Ms. Daniels fairly and accurately evaluated Respondent's performance on November 2, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 3, 1993, Respondent was formally observed in the classroom by Dr. Marleaux. This observation was from 9:00 a.m. to 10:00 a.m. during her fourth grade math class. Based on her observations, Dr. Marleaux rated Respondent's performance as being unacceptable in the following categories: knowledge of subject matter, techniques of instruction, and teacher-student relationships. Dr. Marleaux rated Respondent as being unacceptable in knowledge of subject matter because she made substantial errors during the course of the lesson that created confusion on the part of the students. Respondent did not respond to the students who did not understand the lesson. Dr. Marleaux rated Respondent as being unacceptable in techniques of instruction because she did not use media resources skillfully. She did not use the calculators that were recommended and which were available in the school. She did not have her charts on the blackboard prior to the lesson. When she put the charts on the blackboard, she sat directly in front of them and some of the children could not see. Dr. Marleaux rated Respondent as being unacceptable in teacher-student relationships because Respondent did not consistently utilize the consequences in her assertive discipline plan when students failed to adhere to standards of conduct. The students were punished with different consequences for similar misbehavior. Dr. Marleaux heard Respondent make caustic comments to students. Dr. Marleaux observed that these comments drew attention to these students and embarrassed one of them. Dr. Marleaux again prescribed assignments designed to remediate Respondent's unacceptable performance. The date for submission of her lesson plans was changed to Thursday at Respondent's request. She was to meet with the guidance counselor to learn strategies that would avoid sarcasm and embarrassment to students. She was to meet with the media specialist to learn techniques in the use of media. It was recommended that she use an overhead projector. She was to observe another math teacher who had been helping her. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on December 3, 1993. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On December 13, 1993, Dr. Marleaux held a conference-for-the-record with Respondent. The purpose of the conference was to review Respondent's performance assessments and assistance and to discuss possible action by the School District if remediation were not attained. Respondent was apprised that unremediated performance deficiencies must be reported to the Department of Education and that she may not be reappointed to her teaching position for the 1994/95 school year. Respondent was formally observed by Joyce Daniels in January, 1994. In her observation report, Ms. Daniels rated Respondent's performance as being acceptable in all categories. Respondent re-injured her left knee when she fell in February, 1994. Respondent asked permission to use a wheelchair following this fall. Because the information that the school had received from her doctor reflected that Respondent should not use a wheelchair, Dr. Marleaux told Respondent not to use a wheelchair at North County. Respondent subsequently began using a wheelchair, and Dr. Marleaux did not object. During 1994, Respondent was given scheduled time to elevate her leg and put ice on her knee. On March 28, 1994, Respondent was again observed in an external review by Dr. Marleaux and Dr. E. Trausche, an administrator and TADS evaluator employed by Petitioner. This observation was between 9:00 a.m. and 10:00 a.m. during a mathematics lesson. Dr. Marleaux rated Respondent as being unacceptable in the following categories: preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Dr. Trausche rated Respondent as being unacceptable in the following categories: knowledge of subject matter and techniques of instruction. Dr. Marleaux rated Respondent as unacceptable in preparation and planning because she did not follow her lesson plan. The activities in the teacher's edition were not accomplished. She did not use the suggested materials to accomplish the activities. Dr. Marleaux rated Respondent as unacceptable in knowledge of subject matter because she used erroneous terms in her mathematics lessons and did not seem to fully understand the fractions lesson she was teaching. Dr. Marleaux rated Respondent as unacceptable in classroom management because she did not address off-task student behavior. She did not redirect the students either verbally or non-verbally. Dr. Marleaux rated Respondent as unacceptable in techniques of instruction because her demonstrations were all abstract. She did not utilize methodology outlined in the teacher's edition or teaching aides that were recommended. Her instructional methods did not meet the needs or abilities of the students. She blocked the students' view of work that was on the chalkboard. Many students were confused as to the lesson and some did not even try to do the work. She distracted students by talking to them while they were working. Respondent did not examine the students' work at any time during the lesson. Respondent was again prescribed activities to help her in overcoming her unacceptable performance. She was to observe another teacher. She was to work with the competency-based curriculum math facilitator. The grade level chairperson would work with her. She was to observe another teacher for the use of manipulatives. Based on the evidence presented, including the demeanor of the witnesses, it is found that Dr. Marleaux fairly and accurately evaluated Respondent's performance on March 28, 1994. No findings are made as to the reasonableness of the observations made by Dr. Trausche since Dr. Trausche did not testify at the formal hearing. It is further found that the prescribed assignments were reasonable and formulated to assist Respondent improve her job performance. On April 1, 1994, the Superintendent notified Respondent by letter that she had not corrected her deficiencies and he was recommending to the School Board that she not be issued a new professional contract. On April 13, 1994, the School Board accepted the Superintendent's recommendation and acted to withhold a contract from Respondent for the 1994/95 school year. Respondent's annual evaluation for the 1993/94 school year was overall unacceptable and was unacceptable in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent was not recommended for continued employment by Dr. Marleaux. Respondent testified that on the last day she worked in May, 1994, she began to disassociate and was incoherent. Respondent described disassociating as follows: It's where you're physically located close to someone but it's, your perception is that you are some where else. I could hear her voice but it was, sounded as if I was blocks away or something. Like I could barely hear what was being said of people. It was really frightening. (Transcript, page 218, line 22 through page 219, line 2.) Dr. Marleaux notified Respondent of her unacceptable annual evaluation by memorandum dated June 3, 1994, in lieu of a conference-for-the record, due to Respondent's absences. During the 1993/94 school year, Respondent was absent for 70 days. On many occasions, Respondent was informally observed both at Myrtle Grove and at North County by the same principals and assistant principals who had observed her formally. Respondent's students were often severely off-task and disruptive of other classes. Respondent's class was noisy and out of control. Security monitors frequently came to Respondent's class to get the students under control. Respondent seemed oblivious to the class management problems. Respondent was seen crying three different times. There did not seem to be much teaching and learning taking place. During the 1993/94 school year, Respondent failed to correct the deficiencies in performance which had been identified during the 1992/93 school year, despite many attempts to assist her with activities to remediate her deficiencies. Respondent asserts that Dr. Marleaux's refusal to allow her to use a wheelchair constituted a failure to reasonably accommodate her handicapped condition following the fall. Respondent also asserts that the denial of her request for a transfer, for rehabilitation therapy, or for a leave of absence constituted a failure to reasonably accommodate her handicapped condition. While the Respondent's testimony supports that contention, there is no medical evidence to support this self-serving testimony. The testimony of Dr. Marleaux and Dr. Annunziata established that the school reasonably accommodated Respondent's condition and did not ask Respondent to perform any duties that exceeded the medical restrictions that had been set by her doctors. Respondent also testified as to certain statements and comments that Dr. Marleaux made to her. 1/ The undersigned finds, based on the demeanor of the witnesses and the totality of the evidence, that Dr. Marleaux's denial that she ever made these statements is more credible than the testimony of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order sustaining the decision to terminate Respondent's employment by the nonrenewal of her contract. DONE AND ENTERED this 11th day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of August, 1995.
The Issue Whether the Respondent's professional services employment contract should be terminated for the reasons set forth in the Petitioner's letter to the Respondent dated October 1, 2002, and in the Notice of Specific Charges of Unsatisfactory Performance dated October 25, 2002.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is the entity authorized to operate the public schools in the Miami-Dade County school district and to provide for the appointment, compensation, promotion, suspension, and dismissal of employees of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (2001). At the times material to this proceeding, Ms. Stern was employed as a teacher with the School Board under a professional services contract. Ms. Stern is a member of the United Teachers of Dade ("UTD"), and the terms of her employment with the School Board are governed by the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade ("UTD Contract"). Ms. Stern first received her teaching certificate in 1952, and she began teaching in the Miami-Dade County public school system in 1987. The 2000-2001 school year was her first year teaching at Campbell Drive Elementary, and she was assigned to teach a regular second grade class. Campbell Drive Elementary was rated a "D" level school at the times material to this proceeding. Teacher Assessment and Development System. The Teacher Assessment and Development System ("TADS") had, prior to the 2001-2002 school year, been used in the Miami- Dade County public school system for 15 years to evaluate teachers employed by the School Board. The Joint Committee on Standards for Educational Evaluation ("Joint Committee") decided in 1996 that TADS should be replaced with a new evaluation system.2 As a result, the Professional Assessment and Comprehensive Evaluation System ("PACES") was developed and has been in use in the Miami-Dade County public school system since the beginning of the 2001-2002 school year. As will be discussed in more detail below, the observations and evaluations at issue herein were all performed using TADS. TADS is a performance-based evaluation instrument, which includes sixty-eight specific teacher behaviors that should be performed in the classroom. The TADS evaluation procedures set forth in the UTD Contract and established by the Joint Committee required that formal Classroom Assessment observations be performed, that any observed performance deficiencies be noted, and that professional growth opportunities be provided to teachers with noted deficiencies. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-Calendar Day Performance Probation period for teachers with professional service contracts. A Memorandum of Understanding was executed by representatives of the Miami-Dade County public school system and the UTD to implement procedures for the new system. Pursuant to the procedures adopted in the Memorandum of Understanding, the 90-Calendar Day Performance Probation period is commenced the day after a conference-for- the-record is held with the teacher to advise him or her of classroom performance deficiencies. At least two observations must be conducted during the 90-Calendar Day Performance Probation period, and the teacher must be provided assistance through prescription plan activities and through referrals to resource persons for further assistance. At the conclusion of the 90-Calendar Day Performance Probation period, a confirmatory observation is conducted to determine if the performance deficiencies have been corrected. Prescription plan activities have the status of administrative directives.3 The principal of Campbell Drive Elementary at the times pertinent to these proceedings was Betty Thomas, and the assistant principal was Claudia Brown. Both were trained to observe and evaluate teachers using TADS. Ms. Stern was first observed at Campbell Drive Elementary on October 10, 2001, by Ms. Brown. Ms. Stern received an overall acceptable rating on the CAI (Classroom Assessment Instrument) Post-Observation Report, as well as acceptable ratings on each of the six TADS rating categories. February 5, 2001, observation. Ms. Thomas conducted her first formal observation of Ms. Stern's classroom performance on February 5, 2002,4 when she observed Ms. Stern's second grade math class from 12:30 p.m. until 1:35 p.m. Ms. Thomas completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Thomas rated Ms. Stern's classroom performance acceptable in the categories of Preparation and Planning, Knowledge of Subject Matter, Teacher-Student Relationships, and Assessment Techniques. Ms. Thomas rated Ms. Stern's classroom performance unacceptable in the categories of Classroom Management and Techniques of Instruction. Specifically, Ms. Thomas rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, during the observation, instructional time was lost while Ms. Stern sharpened pencils for several students and wandered around the room without giving instruction to the students and that instructional time was lost when Ms. Stern told the students to put their heads on their desks approximately minutes before they were to leave the classroom for Spanish and Physical Education classes. Ms. Thomas rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students who were off-task and behaving inappropriately. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern ignored or failed to respond when two students yelled at one another during a test, when students talked and played with pencils during a lesson, when two students left the room and returned, when two students hit one another, and when a student crawled on the floor. Ms. Thomas rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, when virtually everyone in the class was talking, Ms. Stern asked those students who were talking to raise their hands; Ms. Stern praised the students who raised their hands for their honesty but did nothing to cause the students to stop talking. Ms. Thomas also noted several instances in which Ms. Stern responded to students with remarks that were either ineffectual or not to the point. Ms. Thomas rated Ms. Stern deficient in indicator III.C.1. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide the students with clear expectations regarding appropriate behavior. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that no class rules were posted in the classroom and that Ms. Stern did not refer to any class rules. Ms. Thomas also noted that, while students were being sent to the board to work math problems, 75 percent of the students in the class were talking and several students were wandering around the room, all without correction from Ms. Stern. Ms. Thomas rated Ms. Stern deficient in indicators III.C.3. and 4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to respond quickly or appropriately to students who acted inappropriately or interfered with the work of others. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not respond, and actually ignored, most of the students' inappropriate behaviors, which included a student dancing around the back of the room, students laughing and playing with a hat, students loudly asking how to do the assignment, and students yelling to one another. Ms. Thomas rated Ms. Stern deficient in indicators IV.G.3. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to emphasize potential areas of difficulty, specifically with respect to the math problems involving "regrouping," by either verbal or non-verbal clues. Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern failed to assist a student who had difficulty with a math problem at the board.5 Ms. Thomas rated Ms. Stern deficient in indicators IV.H.1. and 2. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to clarify areas of potential confusion or to clarify areas of confusion after it became obvious that the students did not understand the assigned math problems involving "regrouping." Ms. Thomas noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern wrote problems on the board and directed the students to solve them without providing any explanation. When several students asked Ms. Stern how to do the problems, she told them she would go over it later, but she did not do so during the math lesson. It was Ms. Thomas's general impression during her February 5, 2002, observation, that Ms. Stern was unable to manage the students in her class. There were many disruptions in the classroom that distracted the students and made it difficult for them to learn. Ms. Thomas estimates that approximately 90 percent of the students in the class were off-task at some point during the observation. On February 20, 2001, Ms. Thomas held a Conference- for-the-Record with Ms. Stern.6 Also present at the conference were Ms. Brown, as well as Ms. Marcos and Ms. Rolle, Ms. Stern's union representatives. During the conference, Ms. Thomas discussed the February 5, 2001, observation with Ms. Stern, and they discussed the prescription plan activities that Ms. Thomas had developed to assist Ms. Stern in correcting the deficiencies identified in the Record of Observed Deficiencies/Prescription for Performance Improvement and the timelines for completion of the prescription plan activities. It was agreed that Ms. Stern would complete all of the prescription plan activities by March 15, 2001. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers that were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. The Summary of the Conference-for-the-Record and Prescription dated February 20, 2001, reflects that Ms. Stern was advised during the conference that her 90-Calendar Day Performance Probation period would commence the day after the conference, on February 21, 2001. Ms. Stern was also advised by Ms. Thomas that, after the conclusion of the probation period, she would determine whether Ms. Stern had corrected the cited deficiencies during the probation period and would make a recommendation to the Superintendent at the conclusion of the probation period that could lead to the termination of Ms. Stern's employment. On February 20, 2001, Ms. Stern signed the CAI Post-Observation Report, the Record of Observed Deficiencies/Prescription for Performance Improvement, and the Summary of the Conference-for-the-Record and Prescription, thereby indicating that she had seen and received a copy of these documents. Ms. Stern completed approximately 80 percent of the prescription plan activities in the February 5, 2001, Record of Observed Deficiencies/Prescription for Performance Improvement by the March 15, 2001, deadline. March 16, 2001, observation. Ms. Brown, the assistant principal at Campbell Drive Elementary, conducted a formal observation of Ms. Stern's classroom performance on March 16, 2001, when she observed Ms. Stern's second grade language arts class from 9:00 a.m. until 10:45 a.m. Ms. Brown's impression was that Ms. Stern was agitated and angry that day and was unable to control the class or to teach adequately. Ms. Brown completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Brown rated Ms. Stern's classroom performance acceptable in the categories of Knowledge of Subject Matter, Teacher-Student Relationships, and Assessment Techniques. Ms. Brown rated Ms. Stern's classroom performance unacceptable in the categories of Preparation and Planning, Classroom Management, and Techniques of Instruction. The TADS Monitoring Committee reviewed the Record of Observed Deficiencies/Prescription for Performance Improvement and gave Ms. Stern credit for indicators IV.F.1., 2., and 3.; this change resulted in Ms. Stern's being rated acceptable in the category of Techniques of Instruction. Specifically, Ms. Brown rated Ms. Stern deficient in indicator I.A.1. of the Preparation and Planning category on the CAI Post-Observation Report because Ms. Stern failed to include in her lesson plan assessment tools, homework, materials, and most of the lesson's objectives and activities. Ms. Brown rated Ms. Stern deficient in indicator I.B.1. of the Classroom Management category on the CAI Post-Observation Report because Ms. Stern failed to prepare content and instructional activities to fill the allotted classroom time. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, although the language arts block of instruction was scheduled from 9:00 a.m. to 11:00 a.m., Ms. Stern instructed the students to put their heads on their desks at 10:40 a.m., terminating the language arts instruction. Ms. Brown rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report because, throughout the observation period, Ms. Stern allowed unnecessary delays during instruction and transitions. The notes Ms. Brown included in the Record of Observed Deficiencies/Prescription for Performance Improvement reflect that Ms. Stern spent approximately 20 minutes of the language arts period making comments to the students about the quality of their work and attempting to get their attention. As reported by Ms. Brown: The teacher called out one comment and direction after the other, such as "I don't hear anything from table 4. excuse me, I just said your tables not talking. you did a beautiful job. thank you, Yrline, did you hear me?" "Salami, one, two, three, four. Now take your paper . . . everybody's eyes up here! Salami! Denise, table 1, your eyes up here, table 1, 2, 3, 4. Take your paper . . . Christian, Okoya, Desiree, Stanley, take your paper . . . excuse me." "Salame" is an acronym for "Stop and look at me," and its use is recommended as a technique for quieting students. Ms. Stern did not apply the technique correctly, however, because she talked very quickly and did not wait to give the students a chance to quiet down. Ms. Brown rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that students were talking and calling out to one another, making noises, and getting out of their seats while Ms. Stern read a story. Ms. Brown also noted that Ms. Stern told students to raise their hands, then accepted answers from students who had not raised their hands, and failed to correct a student who was out of his seat and sitting with a student who had been separated from the group for being disruptive. Ms. Brown rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that a student that Ms. Stern had separated from the class for being disruptive was allowed to spend 20 minutes building a house with word cards; that a student spent 15 minutes with his chin on his desk doing nothing without Ms. Stern's redirecting him, and, although she said she would return to help him, she did not do so; and that, in several instances, Ms. Stern either failed to correct students who were behaving inappropriately or ignored students when they failed to respond to her directions. Ms. Brown rated Ms. Stern deficient in indicator III.C.1. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to make her expectations regarding appropriate behavior clear to the students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that, although Ms. Stern told students to raise their hands to answer questions, she accepted answers called out by students who did not raise their hands and failed to call on students who had raised their hands; that Ms. Stern re-enforced inappropriate behavior by telling a student that he was doing well when he was not working but was turned around in his seat talking to a student behind him; and that, although class rules were posted in the classroom, Ms. Stern did not refer to them. Ms. Brown rated Ms. Stern deficient in indicators III.C.3. and 4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to identify and deal quickly and appropriately with students who interacted with others inappropriately and interfered with the work of others. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern either did not notice, or ignored, students' inappropriate behavior, which included a student doing work in another student's phonetic workbook; students talking and making noises while Ms. Stern was talking or reading; students laughing at another student, who had been sent to the corner and responded to Ms. Stern's direction to get up by standing up and turning around and around. Ms. Brown also noted that Ms. Stern did not state the consequences for students who were continuously told to stop calling out or were continuously told to sit down. Ms. Brown rated Ms. Stern deficient in indicator IV.F.4. of the Classroom Management category on the CAI Post-Observation Report because, as noted in the Record of Observed Deficiencies/Prescription for Performance Improvement, during the observation, Ms. Stern failed to refer back to the objective of the lesson, to relate one part of the lesson to other parts of the lesson, and to summarize the lesson and apply it to past or future lessons.7 A conference was held on March 23, 2001, with Ms. Stern, Ms. Thomas, and Ms. Brown in attendance. No written summary of the conference was prepared, but Ms. Stern signed the CAI Post-Observation Report and the Record of Observed Deficiencies/Prescription for Performance Improvement on March 23, 2001, acknowledging that she had seen and received a copy of the documents. At the March 23, 2001, conference, Ms. Thomas, Ms. Brown, and Ms. Stern discussed the results of the March 16, 2001, observation and the prescription plan activities that Ms. Brown had developed to assist Ms. Stern in correcting the deficiencies identified in the Record of Observed Deficiencies/Prescription for Performance Improvement, as well as the timelines for completion of the prescription plan activities. It was agreed that Ms. Stern would complete all of the prescription plan activities by April 20, 2001. The April 20, 2001, deadline was extended until May 18, 2001, because of Ms. Stern's absences, as discussed below. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers that were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. May 17, 2001, Conference-for-the-Record. In a memorandum dated May 7, 2001, and directed to Dr. Thomasina O'Donnell, a District Director in the School Board's Office of Professional Standards, Ms. Thomas requested that Dr. O'Donnell take control of the "re-entry" of Ms. Stern. Ms. Thomas asked for Dr. O'Donnell's intervention because Ms. Stern had been absent a total of 22 personal and sick days and because Ms. Stern was on 90-Calendar Day Performance Probation. As a result of Ms. Thomas's request, Dr. O'Donnell sent a memorandum dated May 7, 2001, to Ms. Stern telling her that she needed to contact the Office of Professional Standards before she returned to work so that a clearance conference could be scheduled. The clearance conference was held on May 16, 2001, at the Office of Professional Standards. Dr. O'Donnell, Ms. Thomas, Clemencia Waddell, Director of Region VI, and Dia Falco, Ms. Stern's UTD representative, attended the conference. As reflected in the Summary of the Conference-for-the-Record, the purpose of the conference was to address Ms. Stern's performance assessments, her attendance, and her medical fitness to perform her duties and to review Ms. Stern's record and her future employment status with the Miami-Dade County public school system. As of May 15, 2001, Ms. Stern had used more sick time than she had accrued, and Dr. O'Donnell advised her that her absences, which consisted of 21.5 sick and personal days and 1/2 days of unauthorized leave without pay, were considered excessive. Ms. Stern's performance evaluations were also discussed at the conference, and it was noted that she had been provided prescription plan activities to assist her in correcting the deficiencies identified in the March 16, 2001, observation report, which activities were to have been completed by April 20, 2001. Ms. Stern had not provided the required materials to Ms. Thomas or Ms. Brown, but, because she was absent beginning on April 18, 2001, Ms. Stern was directed to provide all of the required materials for the prescription plan activities to Ms. Thomas by the end of the workday on May 18, 2001. Ms. Stern was advised that the failure to provide these materials within the time specified would be considered a deficiency in Category VII, which is the Professional Responsibilities category of TADS, and that she would be placed on a Category VII prescription. Several directives were included in the Summary of the Conference-for-the-Record, and Ms. Stern was advised that she was cleared to return to work on May 17, 2001. May 22, 2001, observation. Ms. Brown conducted a formal observation of Ms. Stern's classroom performance on May 22, 2001, when she observed Ms. Stern's second grade language arts class from 9:00 a.m. until 11:00 a.m. Ms. Brown's overall impression was that Ms. Stern 's performance was worse than it was during the observation on March 16, 2001. Ms. Brown completed a CAI Post-Observation Report and a Record of Observed Deficiencies/Prescription for Performance Improvement in which she reported the results of this observation. In the CAI Post-Observation Report, Ms. Brown rated Ms. Stern's classroom performance acceptable in the categories of Teacher-Student Relationships and Assessment Techniques. Ms. Brown rated Ms. Stern's classroom performance unacceptable in the categories of Preparation and Planning, Knowledge of Subject Matter, Classroom Management, and Techniques of Instruction. Specifically, Ms. Brown rated Ms. Stern deficient in indicator I.B.1. of the Preparation and Planning category on the CAI Post-Observation Report because Ms. Stern had failed to plan content and instructional activities to fill the classroom time allotted for the language arts block. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern took the students to the library at 10:30 a.m., but had completed her planned classroom activities at 9:55 a.m. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to present information in a meaningful or orderly manner. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that "[t]he sequence of the ideas did not flow into one another. The teacher asked questions and talked about whatever came to her mind, . . ." Ms. Brown also noted that there was no logical sequence of activities or framework established for the activities. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to tell the students the most important topics in the lesson or various applications of the topics introduced in the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not tell the students what they would be doing and did not relate the lesson to the students' experiences. Ms. Brown rated Ms. Stern deficient in indicator of the Knowledge of Subject Matter category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to present information using analysis or comparisons. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not ask open-ended questions, that she limited her questions to those that were simple and basic, and that she failed to challenge the students beyond one cognitive level. Ms. Brown rated Ms. Stern deficient in indicator III.A.2. of the Classroom Management category on the CAI Post-Observation Report. The notes Ms. Brown included in the Record of Observed Deficiencies/Prescription for Performance Improvement reflect that Ms. Stern wasted 12 minutes of instruction time because of delays attributable to her repeatedly consulting her lesson plan during class and failing to use student helpers to pass out papers to the class, causing the students to wait without instruction until she passed out all of the papers. Ms. Brown rated Ms. Stern deficient in indicators III.B.2. and 3. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use verbal or non-verbal techniques to redirect students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not notice or noticed but chose not to re-direct a student who was making a paper airplane and rearranging his desk and the inside of his book bag for a period of 15 minutes and that Ms. Stern did not speak to a student who, for a period of 10 minutes, sat with her knees to her chest. Ms. Brown also noted that Ms. Stern thanked two students for no apparent reason. Ms. Brown rated Ms. Stern deficient in indicator III.B.4. of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to use techniques to hold the attention of students who had been re-directed. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not notice for two minutes that a student had slid his chair halfway across the room to place it beside that of another student and that, when she noticed, she merely told the student to sit down. Ms. Brown also noted that a student fell asleep at 9:45 a.m.; after about 10 minutes, Ms. Stern noticed the student, asked if he had stayed up late the night before, and left him to sleep until he awoke at 10:25 a.m. Ms. Brown rated Ms. Stern deficient in indicator of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to make her expectations regarding appropriate behavior clear to the students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern told the students that she "love[d] the way everyone is talking at once but it doesn't help" and that Ms. Stern continued to accept answers from students who called out, accepting more answers from these students than from the students who raised their hands. Ms. Brown rated Ms. Stern deficient in indicator of the Classroom Management category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide the students with appropriate and correct verbal feedback regarding specific behaviors. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern ignored two students who had their hands up for several minutes and accepted answers called out by other students. Ms. Brown also noted that Ms. Stern praised the class for working well together when the activity was an activity that each student worked on alone. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to give the students necessary background about their activities. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not tell the students the ideas or skills they were to learn from the two stories that she read to them, one about a bear with a toothache and one about an octopus; she merely told the students that she was going to read a book. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to tell the students how each activity related to the other activities. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not emphasize the important topics in the two stories or link the topics in the stories to future activities. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to sequence activities and failed to point out any logic to the order in which she presented components of the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern went from one activity to the next without having an apparent goal or order to the lesson. Ms. Brown rated Ms. Stern deficient in indicator of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to provide closure to the lesson. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern did not summarize, recapitulate, or apply any of the concepts in the lesson to any past or future lessons. Ms. Brown rated Ms. Stern deficient in indicator IV.H.2. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to clarify the students' confusion. Ms. Brown relates in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern asked a student a question about an octopus; when the student answered, "The end of one of the octopus' tails is the mouth," Ms. Stern's only response was "OK. I don’t quite understand but OK." Ms. Brown also noted that Ms. Stern passed out word cards to the students but never told them what to do with the cards. Ms. Brown rated Ms. Stern deficient in indicator IV.H.4. of the Techniques of Instruction category on the CAI Post-Observation Report because, during the observation, Ms. Stern failed to answer quietly the questions of individual students but would address the entire class when answering the questions of one or two students. Ms. Brown noted in the Record of Observed Deficiencies/Prescription for Performance Improvement that Ms. Stern interrupted the entire class several times to answer the questions of two students, with the result that the class did not have enough quiet time to read and complete the activity. A Conference-for-the-Record was held on May 23, 2001, which was attended by Ms. Thomas, Ms. Brown, and Ms. Stern.8 During the conference, the deficiencies noted by Ms. Brown during her observation on May 22, 2001, were discussed, as well as the prescription plan activities that Ms. Stern was to complete to assist her in correcting the deficiencies. The timeline for completion of the prescription plan activities was also discussed, and it was agreed that Ms. Stern would complete all the prescription plan activities by June 13, 2001. The Record of Observed Deficiencies/Prescription for Performance Improvement also included lists of administrators and teachers who were available to assist Ms. Stern with respect to the prescription plan activities for the various deficiencies noted. Ms. Stern's failure to complete the prescription plan activities included in the March 16, 2001, observation by the May 18, 2001, deadline was also discussed at the May 23, 2001, Conference-for-the-Record. The Summary of the Conference-for- the-Record reflects that Ms. Brown went over with Ms. Stern the prescription plan activities that were not completed. As a result of her failure to complete the prescription plan activities, Ms. Thomas placed Ms. Stern on prescription for Category VII, the TADS Professional Responsibilities category. Ms. Stern had been advised at the May 17, 2001, Conference-for- the-Record at the Office of Professional Standards that a Category VII prescription would be the consequence if she failed to complete the prescription plan activities by the May 18, 2001, deadline. Ms. Stern ultimately completed the prescription plan activities in the March 16, 2001, Record of Observed Deficiencies/Prescription for Performance Improvement, although Ms. Brown had a difficult time determining that Ms. Stern completed all of the activities because the materials she submitted to Ms. Brown were very disorganized. Ms. Stern also turned in by the June 13, 2001, deadline all of the written materials required in the prescription plan activities assigned as a result of the May 22, 2001, observation. She did not, however, turn in her weekly lesson plans to Ms. Brown prior to implementing them, as she had been instructed; rather, she turned in her lesson plans late, and, near the end of the 2000-2001 school year, she did not turn in any lesson plans. September 13, 2001, Confirmatory Observation. In a letter to Ms. Stern dated April 26, 2001, Dr. O'Donnell acknowledged having received a request for medical leave from Ms. Stern for the period extending from April 18, 2001, through May 4, 2001. In the letter, Dr. O'Donnell clarified for Ms. Stern the School Board's position with respect to the impact of her absences on the calculation of the days remaining in her 90-Calendar Day Performance Probation period. Dr. O'Donnell confirmed in the letter that Ms. Stern's probation period began on February 21, 2001, and that the prescription plan activities arising out of the March 16, 2001, observation were due to be completed on April 20, 2001. Dr. O'Donnell further advised Ms. Stern that the first 10 days of absence were included in the calculation of the 90 calendar days of the probation period and that, accordingly, the end of her probation period would be extended from May 31, 2001, to June 6, 2001, both of which dates fell within the final 10 days of the school year. Dr. O'Donnell acknowledged in the April 26, 2001, letter that, normally, no observations were performed during the first and final 10 days of a school year, but she advised Ms. Stern that her 90-day probation period must be concluded by June 16, 2001, because the Miami-Dade County public school system was to change from TADS to PACES for teacher performance evaluations, effective at the beginning of the 2001-2002 school year. Accordingly, Dr. O'Donnell put Ms. Stern on notice in the April 26, 2001, letter that her confirmatory observation would take place after her 90-Calendar Day Performance Probation period ended on June 6, 2001. In a letter dated May 9, 2001, Ms. Falco, on behalf of the UTD, advised Dr. O'Donnell that, first, she had misstated the rule regarding the treatment of absences. According to Ms. Falco, the UTD Contract provided that the first 10 days of absence were not to be counted in calculating the 90 days. Nonetheless, Dr. O'Donnell's calculation of June 6, 2001, as the last day of Ms. Stern's probation period was correct. Ms. Falco also took issue with Dr. O'Donnell's decision to complete Ms. Stern's probationary period on June 16, 2001, and she advised Dr. O'Donnell that the then-current observation procedures prohibited any formal observations during the first and final 10 days of the school year and that the UTD would appeal any formal observation of Ms. Stern conducted during the final 10 days of the 2000-2001 school year. Finally, Ms. Falco advised Dr. O'Donnell that the Joint Committee had not yet determined how to treat teachers whose probation periods carried over into the 2001-2002 school year, when teachers were to be evaluated under PACES. The Joint Committee considered Ms. Stern's case individually and decided that Ms. Stern's confirmatory observation was to be conducted using TADS rather than PACES. Ms. Stern was not disadvantaged by having this observation conducted under TADS because it is easier for a teacher to get an acceptable evaluation under TADS than under PACES. In accordance with the position taken by the UTD and because Ms. Stern could not be observed during the first 10 days of the 2001-2002 school year, the end of Ms. Stern's 90-Calendar Day Performance Probation period was finally determined to be September 10, 2001. On September 13, 2001, Ms. Thomas conducted a formal observation of Ms. Stern's classroom performance when she observed Ms. Stern teach a second grade math class from 1:30 p.m. to 2:30 p.m. This observation was the required confirmatory observation conducted to determine whether Ms. Stern had corrected the performance deficiencies identified in the February 5, 2001, March 16, 2001, and May 22, 2001, observations. Ms. Thomas completed a CAI Post-Observation Report in which she reported that she found Ms. Stern's classroom performance unacceptable in all five categories of TADS, Preparation and Planning, Knowledge of Subject Matter, Classroom Management, Techniques of Instruction, Teacher-Student Relationships, and Assessment Techniques. Ms. Thomas based her determination that Ms. Stern's classroom performance was unacceptable on several factors. During the September 13, 2001, observation, Ms. Thomas noted that Ms. Stern was not teaching the lesson identified on her lesson plan; one of the students repeatedly threw paper across the room into a garbage can without re-direction by Ms. Stern; students were talking to one another and moving around the room during the entire lesson, to the extent that it was difficult for Ms. Thomas to hear Ms. Stern; Ms. Stern did not remind students who were misbehaving of the class rules; Ms. Stern appeared not to notice a student crawling around on the floor; Ms. Stern told students to raise their hands, but she did not call on the students who did so; and Ms. Stern had only two grades for the students in her grade book at a point in the school year when she should have had two grades listed for each student for each week of school in each the five subjects she taught in her second grade class, or over 40 grades. Recommendation for termination. On September 17, 2001, Ms. Thomas notified Ms. Stern that she had failed to comply with the Category VII prescription imposed on May 23, 2001, because she had failed to turn in any lesson plans during the first weeks of the 2001-2002 school year. On September 17, 2001, Ms. Thomas also presented to Ms. Stern for her signature a form that Ms. Thomas intended to submit to Dr. George M. Koonce, Regional Superintendent, containing Ms. Thomas's recommendation that Ms. Stern's employment contract be terminated because she had not satisfactorily corrected the noted performance deficiencies within the 90-Calendar Day Performance Probation period. Ms. Stern refused to sign the form to acknowledge that she was aware of the recommendation. Dr. Koonce indicated his approval of Ms. Thomas's recommendation and forwarded it to the Deputy Superintendent for Personnel and Management Services, who, in turn, forwarded the recommendation to the Superintendent of the Miami-Dade County Public Schools. In a letter dated October 1, 2001, the Superintendent notified Ms. Stern that he was recommending to the School Board that her employment contract be terminated at its October 24, 2001, meeting. Ms. Stern timely contested the recommendation, and this administrative proceeding commenced. Summary The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Ms. Stern failed to correct the deficiencies identified in her classroom performance within the 90-Calendar Day Performance Probation period, that School Board personnel adhered to the applicable evaluation procedures in assessing Ms. Stern's teaching performance and in reaching the decision to terminate her for unsatisfactory teaching performance, and that the School Board adhered to all statutory timeframes. Throughout the duration of Ms. Stern's 90-Calendar Day Performance Probation period, Ms. Thomas and Ms. Brown offered Ms. Stern assistance to help her correct the deficiencies in her classroom performance. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that, although Ms. Stern completed many of the prescription plan activities identified in the Record of Observed Deficiencies/Prescription for Performance Improvement for the observations of February 5, March 16, and May 22, 2001, she was unable or unwilling to implement in the classroom the techniques and lessons included in the prescription plan activities and failed to correct the deficiencies in her classroom performance. In her testimony, Ms. Stern did not dispute any of the facts included by Ms. Thomas and Ms. Brown in the Record of Observed Deficiencies/Prescription for Performance Improvement for the formal observations of February 5, March 16, and May 22, 2001. Rather, Ms. Stern presented in her testimony justifications for and explanations of her classroom performance during the formal observations. This testimony has been considered and found insufficient to rebut the evidence of unsatisfactory performance presented by the School Board: Ms. Stern's second grade class was composed of students of varying abilities and ethnic backgrounds, but so were all of the second grade classes at Campbell Drive Elementary. Ms. Stern's classroom may not have provided an optimum environment for teaching, but the shortcomings of the physical and technological facilities provided to Ms. Stern do not justify the noted deficiencies in her teaching and classroom skills. Finally, Ms. Stern's laissez-faire attitude regarding the inappropriate behavior of her students is difficult to reconcile with her obligation as a teacher to maintain a classroom environment in which opportunities for learning are maximized.9
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order terminating the professional services contract of Joanne T. Stern. DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2002.
