The Issue Whether Respondent's continuing contract of employment with the Petitioner should be terminated for incompetency or for gross insubordination and willful neglect of duty.
Findings Of Fact At all times pertinent to this proceeding, the Respondent has been employed by Petitioner as an elementary school classroom teacher pursuant to a continuing contract of employment. Respondent is 57 years of age and has been a classroom teacher for a total of 29 years. She began working for Petitioner during the 1975-76 school year and has worked under a continuing contract since August 1980. Prior to that time, she was a classroom teacher in Winter Park, Florida. In 1980, Respondent's principal observed that Respondent was habitually tardy at the work site and had difficulty accepting criticism. During the 1983-84 school year, Respondent's principal found Respondent to be deficient in classroom management, student-teacher relationships, instructional techniques, and supportive characteristics. Efforts to have Respondent correct these deficiencies were unsuccessful. A prescription of assigned activities was developed in an effort to help Respondent to correct these deficiencies. Respondent was required to attend a teacher education course in classroom management to obtain ideas on how to better manage her class. Respondent failed to complete that course. She also failed to follow administrative directives that she arrive at school on time and that she maintain anecdotal records for students. Respondent's poor teaching performance and insubordinate behavior in failing to follow directives led Respondent's principal to recommend that her employment be terminated. No action was taken on that recommendation. There was no evidence as to Respondent's job performance between the 1983-84 school year and the 1991-92 school year. From 1991 through 1993, Respondent was assigned to teach a second grade class at Palm Springs North Elementary (Palm Springs). Dawn Hurns was the Respondent's principal at Palm Springs and Raquel Montoya was her assistant principal. Respondent frequently took her class to lunch earlier than scheduled and picked her class up from lunch after the period had expired. Ms. Montoya directed Respondent to adhere to her lunch schedule. Respondent failed to comply with that directive. On February 6, 1992, Ms. Montoya advised Respondent that her continued failure to adhere to administrative directives would result in formal disciplinary action being taken against her. During the 1992-93 school year, Ms. Hurns observed Respondent's performance and noted deficiencies pertaining to record keeping, attendance, tardiness, and organizational skills. After formally observing Respondent's deficient classroom performance, Ms. Hurns met with Respondent and gave her an opportunity to work on her deficiencies. In subsequent observations, both Ms. Hurns and Ms. Montoya found Respondent's performance to be deficient. In an attempt to remedy her unacceptable performance in the classroom, Respondent was provided prescriptive activities designed to improve her classroom management. On November 2, 1992, Ms. Hurns issued Respondent a memorandum addressing her chronic tardiness to school and her failure to notify the school of her expected tardiness in violation of her professional responsibilities. As a result of frequent tardiness, Respondent's students were often left unattended on the basketball court where they assembled before school began. Ms. Hurns often had to escort Respondent's students to their classroom in the absence of the Respondent. Ms. Hurns held a "Conference for the Record" (CFR) with Respondent on December 10, 1992, to address her unacceptable performance and to notify her that continued unacceptable performance would yield an unacceptable annual evaluation. Ms. Hurns also offered Respondent assistance in correcting her deficiencies, including a referral to the Petitioner's Employee Assistance Program (EAP). Although two meetings were scheduled for Respondent at the EAP, Respondent did not attend either meeting and did not take advantage of the EAP. By December 21, 1992, Respondent had received two unacceptable observations, which yielded an unacceptable summative assessment as established by Petitioner's Teacher Assessment and Development System (TADS). 2/ On January 13, 1993, Ms. Hurns completed a TADS summative assessment form that found Respondent's classroom performance unacceptable in three out of seven categories. The first category was "Knowledge of Subject Matter" with the observed deficiency being ineffective presentation of the subject matter. The second category was "Teacher-Student Relationships" with the observed deficiency being the failure to attempt to systematically involve all students in class activities. The third category was "Assessment Techniques" with the observed deficiency being the failure to properly record grades for students. Ms. Hurns observed Respondent's grade books and discovered that, except for one or two grades in reading, there were no grades or other assessment of the students' work over a period of nine weeks. Respondent was directed to follow the prescribed grading policy, which required a teacher to have at lease one grade per week for each subject area. It was impossible to adequately assess students' work with such few grades or with no grades at all. In addition to the foregoing, Respondent continued to be absent or tardy without excuse. On January 14, 1993, Ms. Hurns held a CFR with Respondent to discuss Respondent's lack of compliance with her professional responsibilities, her irregular attendance, and her frequent tardiness. At the CFR, Respondent was directed to notify an administrator of her intent to be absent or tardy to school, to provide lesson plans for her substitutes, and to provide grades for her students. By memorandum dated February 17, 1993, after a prolonged absence by Respondent, Ms. Hurns advised Respondent of her continuing failure to complete her prescribed activities, and her continuing lack of attendance. Ms. Hurns directed Respondent to either take a leave of absence and notify the school when she expected to return or to resign. On March 8, 1993, Ms. Montoya notified Respondent of her continued disregard for administrative directives. After a parent requested to see proof of her daughter's lack of academic progress in Respondent's classroom and complained of Respondent's refusal to assist the parent in improving her child's performance, Respondent was directed by Ms. Montoya to provide the parent with a daily progress report on the student's performance. Respondent failed to comply with this directive. On March 11, 1993, Ms. Hurns formally observed Respondent's classroom performance and noted that Respondent had not complied with School Board rules, labor contract provisions, and school site rules. Respondent did not maintain accurate student records pertaining to grades for her students, she had not completed her prescriptive activities, and she continued to be absent on a frequent basis. Ms. Hurns held another CFR with Respondent on March 11, 1993, and told her that her continuing failure to comply with the administrative directives given January 14, 1993, constituted gross insubordination. As a result of Respondent having obtained two unacceptable summative assessments, Ms. Hurns requested that Petitioner send to Palm Springs a trained observer to conduct an observation of the Respondent's performance. In response to that request, Norma Bossard, a Language Arts supervisor who had been trained as a TADS observer, was sent by Petitioner to observe the Respondent. Ms. Hurns was present when Ms. Bossard conducted her formal observation of Respondent's classroom performance. Both Ms. Hurns and Ms. Bossard found Respondent's performance to be unacceptable in the following categories: "Preparation and Planning," "Knowledge of the Subject Matter," "Techniques of Instruction," and "Assessment Techniques". During the external observation, Respondent gave a lesson on spelling that lasted approximately an hour longer than it should have. Respondent also failed to give her students a pretest to determine whether the spelling lesson was even necessary. The external review by Ms. Bossard was consistent with the observations made by Ms. Hurns as to deficiencies in the Respondent's job performance. Ms. Bossard concluded that Respondent was wasting the time of her students. Ms. Bossard observed that Respondent appeared to be very wide-eyed and disoriented. On April 19, 1993, a CFR was held with Respondent at the Petitioner's Office of Professional Standards to address her unacceptable performance in the classroom, her insubordination in the form of her continued noncompliance with directives relating to her assigned prescriptive activities, and her excessive absences and chronic tardiness. At this CFR, Respondent was again directed to comply with previous administrative directives, and was informed that such compliance had become a condition of her continued employment. By the end of the 1992-93 school year, Respondent had been absent at least 59 days and had been tardy on at least 31 occasions. Despite being specifically told to do so, Respondent frequently failed to call the school and inform school administrators that she would either be absent or tardy. Although Respondent was chronically absent from the work site, she failed to provide lesson plans for substitute teachers. Respondent's persistent absenteeism, failure to provide lesson plans, and lack of assessment of students' work had a detrimental impact on the students assigned to her classroom. As a result of Respondent's continued unacceptable classroom performance, her failure to remediate her deficiencies and her failure to comply with administrative directives, Respondent received an unacceptable annual evaluation by Ms. Hurns. Ms. Hurns submitted a recommendation that Respondent's employment with the Petitioner be terminated. Ms. Hurns had intended to hold a CFR with Respondent to address her unacceptable annual evaluation, but Respondent was absent from school for an extended period of time and the CFR was not held. On July 7, 1993, Petitioner suspended Respondent's employment on the grounds of gross insubordination and incompetency and instituted these proceedings to terminate her continuing contract. Petitioner established that there was a continuing refusal to comply with administrative directives by Respondent and that she failed to abide by procedures for maintaining adequate grading of the work of her students, did not provide appropriate lesson plans, and failed to take advantage of the prescriptive activities assigned for her performance improvement. Respondent's considerable and excessive absences from the classroom and her failure to provide lesson plans and properly grade students' work resulted in a failure to communicate with and relate to her students to such an extent that Respondent failed to provide her students with a minimum educational experience. Despite the fact that Respondent was given ample opportunities to correct her behavior, she constantly and intentionally refused to obey direct orders to contact administrators when she was going to be absent or tardy, to provide lesson plans for her substitutes, and to maintain grades for her students. Ms. Hurns and the other administrators involved in evaluating Respondent's performance, took reasonable measures to communicate directly with Respondent about her classroom deficiencies and her attendance. At the formal hearing, Respondent testified that she became confused and disoriented and conceded that she had difficulty working. Respondent introduced evidence in an attempt to establish that her poor job performance was caused by medical problems. Under the Respondent's health care system, Respondent was required to obtain a referral for health care services from her primary physician who was, at the times pertinent hereto, Dr. Olive Chung-James. Dr. Chung-James saw Respondent several times starting in February 1993, for various symptoms and illnesses. In May 1993, Dr. Chung-James, who had been treating Respondent for respiratory problems and vomiting, recommended that Respondent seek psychological counselling because she thought the Respondent was stressed out. After the suspension of her employment in July 1993, Respondent met by coincidence a certified psychologist named Lani Kaskel. Respondent called Dr. Kaskel several times before she was able to arrange an appointment. Because Respondent had not been referred to Dr. Kaskel by Dr. Chung-James, the Respondent's health insurance did not pay for her visit to Dr. Kaskel. When Dr. Kaskel examined the Respondent, the Respondent was in a weak condition, somewhat disoriented, and clearly depressed. Respondent was seeking help and appeared overwhelmed. Dr. Kaskel suggested to Respondent that she might have an organic feature to the depression she was experiencing and referred her to Luis Escovar, a clinical psychologist who had been approved by Respondent's insurance plan. Respondent was referred to Dr. Kenneth Fischer, who is board certified in neurology by the American Board of Psychiatry and Neurology. Dr. Fischer's records reflects that Respondent presented herself with a history of personality disorder and headaches. Dr. Fischer conducted a series of tests to determine if there was a physical cause for the headaches she was experiencing, including a Magnetic Resonance Imaging (MRI) test, which was abnormal. The MRI revealed an area of the brain with decreased density which was interpreted by the consulting radiologist to be a low-grade tumor. Following his examination of the Respondent, Dr. Fischer was of the opinion that Respondent had either an ischemic process stroke or a brain tumor. His tests were inconclusive, and he could not testify that Respondent's poor performance and her failure to follow directives were attributable to organic causes. Respondent testified that during the 1992-93 school year she got behind in her work and she had trouble finishing her work and the prescriptions mandated by the school administrators. She testified that she did not willfully fail to meet the performance expectations, but that she could not do so because she was ill. Dr. Luis Escovar, a psychologist who treated the Respondent and who performed a series of psychological testing, expressed the opinion that on February 14, 1994, the Respondent was physically and mentally able to return to her employment as a classroom teacher. Respondent asserts that Respondent's poor classroom performance was due to an illness and that she should have been placed on sick leave. Respondent's assertion is rejected for two reasons. First, the medical testimony is speculative and does not establish that Respondent's poor job performance and failure to follow directives were caused by a stroke or by a brain tumor. Second, while Respondent testified that she sought sick leave, she offered no evidence as to whom this request was made, the date the request was made, the duration of the leave requested, the manner in which the leave was requested, or any other circumstances of the request. In light of the many offers of assistance that were made to the Respondent, which she repeatedly declined, it is found that Respondent did not establish that she made a proper request for sick leave that was refused by the administrators of Palm Springs. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order which adopts the findings of fact contained herein and which terminates the Respondent's continuing contract of employment. DONE AND ENTERED this 28th day of July 1994 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 28th day of July 1994.
The Issue Whether the School Board of Broward County, Florida (School Board) has just cause to terminate Respondent's employment based on the allegations set forth in the Administrative Complaint dated May 13, 2010.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. At all times material hereto, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract. At all times relevant to this proceeding, Respondent was assigned to Ashe Middle School where she taught reading and language arts. Respondent holds a Florida educational certificate that has both reading and gifted endorsements. During the time Respondent taught at Ashe Middle School, the school was considered a low performing school. There was a high level of student turnover and a relatively high number of foreign students who did not speak English. Respondent had an advanced reading class that read on grade level. Most of her other students read below grade level.1 Pursuant to a collective bargaining agreement (CBA) with Broward Teachers Union and applicable law, which will be discussed in the Conclusions of Law section of this Recommended Order, School Board has adopted a system to assess teachers known as Instructional Personnel Assessment System (IPAS). Subsection (F)(1)b of Article 18 of the CBA contains the following guiding principle: b. The School Board and BTU [Broward Teachers Union] acknowledge that the assessment process should recognize the professional nature of teaching and supervision. Educational research has not identified a single uni-dimensional construct called "effective teaching." Teachers must pursue a variety of models of effective teaching. It is recognized, moreover, that the educational environment is complex and variable and great weight should be placed on teacher judgment to guide the activities of student learning. Subsection F(2)(e) of Article 18 of the CBA requires that the principal, director, or his/her designee evaluate each employee at least once a year utilizing IPAS. Rating criteria are defined on the IPAS form in the following categories: Instructional Planning Lesson Management Lesson Presentation Student Performance Evaluation Communication Classroom Management Behavior Management Records Management Subject Matter Knowledge Other Professional Competencies The evaluator rates the employee as to each criterion and for overall performance. The rating can be "satisfactory", "needs improvement", or "unsatisfactory." Subsection F of Article 18 of the CBA describes IPAS. Pursuant to the CBA, the assessment system requires a teacher, whose performance has been deemed deficient in one or more areas by an appropriate school administrator, to be placed on a Performance Development Plan (PDP). A school administrator develops the plan and monitors the employee's progress in completing the plan. Subsection F(2)(m)2 of Article 18 of the CBA provides as follows as to the use and implementation of a PDP: Use and implementation of this plan requires identification of deficiencies, definition of strategies for improvement, definition of an assistance timeline, definition of expected outcomes, definition of possible consequences for failure to remediate, completion of assistance activities, and documentation. Subsection (F)(2)f of Article 18 of the CBA provides as follows: The following five (5) techniques are used to gather data on employee performance. Assessors use multiple techniques to understand actual performance and develop performance ratings. Informal classroom observations: Informal observations are made periodically by the principal or designee. A follow-up conference is not required subsequent to an informal classroom observation if performance is deemed satisfactory. Formal classroom observations: Formal observations are primarily initiated by the principal or designee. Employees may, however, request a formal observation. These are not less than 30 minutes in duration and are conducted by the principal, director or his/her designee. The 30 minute time period may be shortened by mutual agreement between the principal and the affected employee. All observations of employees for the purpose of assessment shall be conducted with the full knowledge of the employee. A conference is conducted after each formal observation. The FPMS [Florida Performance Measurement System] or other educationally sound observation instruments which may be used for formal observation.[sic] Observations in non-classroom situations: Principals use opportunities outside the classroom to observe the performance of employees. A follow-up conference is not required subsequent to this type of observation if performance is deemed satisfactory. Review of records and data: Principals review a variety of work samples prepared by the employee. These may include lesson plans, reports, grade card comments, discipline referral documents, etc. In addition, specific records or plans may be requested for review. A follow-up conference is not required if performance is deemed satisfactory. Review of performance portfolio: The principal or designee and the employee may mutually decide that a performance portfolio is needed to provide additional information for the completion of the assessment ratings. The design of a portfolio is determined by the principal and employee. A follow-up conference is not required if performance is deemed satisfactory. A teacher placed on a PDP is given 90 calendar days, excluding school holidays and vacations, to correct the identified performance deficiencies. If, at the end of the 90- day probation period, the performance of the employee remains at an unsatisfactory level for one or more of the assessment criteria, a rating of U (for unsatisfactory) is given. At that juncture, the administrator can extend the PDP period, or he/she can refer the matter to the Office of Professional Standards for further proceedings. Mr. Luciani was the principal and Mr. Muniz was an assistant principal at Ashe Middle School during the 2006-07 school year. On December 11, 2006, Mr. Muniz wrote a memo to Respondent. The memo is quoted verbatim because it targeted problems that continued throughout Respondent's tenure at Ashe Middle School. The memo is as follows: This correspondence is to document the last few week's [sic] events when it was determined that your job performance has been less than satisfactory in the following areas: Behavior Management-managing student behavior Records Management-management of data Communications Instructional Planning On December 7, while doing a classroom visit that lasted 31 minutes I noticed a lack of classroom management. It took almost seven minutes to get the class under control to start your lesson. While there were only 11 students in your room, yet, only five students were on task. You continued to do your lesson despite the disruptions. I am not sure if you were aware or just ignored the disruptions. In the last few weeks you have banished, kicked out, or attempted to kick out students everyday for almost twelve consecutive days. In the past Mr. Hart, Assistant Principal, and I have mentioned that the students should be accompanied by an escort or if you have a receiving teacher you should wait at the door until the child is situated. In at least five occasions your students have been caught wandering the halls because you have kicked them out. There have been many times while on hall duty that I noticed you kicking students out and the class has not yet started. This is unacceptable. You are responsible for the students in your class. When they are unescorted the possibility of injury exist [sic] due to your negligence. The students have not sat down and you attempt to remove them from class. This is also unacceptable. Prior to our recent data conference it was 12:15 in the afternoon and you requested to find out what data you needed at the conference. I directed you to Ms. J. Shakir[,] reading coach[,] who assisted you in securing minimal data for the conference. Please note that there had been four data presentations regarding preparation for the data conferences conducted by Mr. Fleisher and Ms. Lumpkin form c-net. Ms. Shakir and Ms. Pickney also conducted data disaggregation workshops in the previous weeks. While at the conference itself you appeared to know very little with regard to your student data. You were not familiar with your BMA results or the progress your individual students or classes had made. There was no attempt made at providing categorical breakdowns of students which needed prescriptive strategies to address their needs. The confrontational manner with which you speak to children is a direct factor in the lack of classroom management. Your lack of communication skills has led to referrals on many students which have led to major consequences for students after the referrals led to escalated verbal confrontations. During various grade level meetings, I have requested that all teachers provide me with emergency lesson plans every two weeks. To date I have not received any of these plans. Our expectations for each of the above listed concerns are: First and foremost, resolve the discipline problems in compliance with the policies of the school, rules of the District School Board and [sic] the State Board and Florida Statutes. Next, maintain consistency in all application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction. You must prepare for your students all day every day. Lesson plans must be meaningful and relevant to your content area. Studies show that students who are authentically engaged are less prone to deviant [sic] behavior. You must maintain complete order in your classroom. The Principles of Professional Conduct for the Education Profession in the State of Florida requires that the educator make reasonable efforts to protect the students from conditions harmful to learning, and/or to the students' mental, and/or physical health and/or safety. In the next few weeks you will be provided with assistance from behavior specialists, reading/curriculum coach and c-net personnel to assist you in meeting expectations. In February 2007 Respondent was placed on a PDP. Mr. Muniz monitored Respondent's progress and opined that she had not successfully completed the PDP. Mr. Luciani disagreed and instructed Mr. Muniz to give Respondent a satisfactory evaluation, which he did.2 Mr. Luciani was the principal and Mr. Hart was an assistant principal at Ashe Middle School during the 2007-08 and 2008-09 school years. Mr. Hart received a written complaint from a student that on October 1, 2008, Respondent told the student that the student's mother was unfit and did not know how to raise the student. In response to that complaint, on October 3, 2008, Mr. Hart issued Respondent a letter addressing the inappropriate manner in which she had addressed students, which included the following: On numerous occasions you have been counseled regarding your inappropriate comments/behavior towards students. This behavior includes embarrassing, disparaging, and/or awkward comments and/or actions. It has recently been brought to my attention that, once again, you have exhibited this behavior. * * * I am directing you to cease and desist all actions/comments of this nature immediately. You are to speak to students in a respectful, professional manner at all times. Mr. Hart, Respondent, and the student's parent met to discuss the alleged statements made by Respondent to the student. During that conference, Respondent became angry and left the meeting. Later, Mr. Hart met with Respondent to give her a copy of his letter dated October 3. Respondent took the letter and walked out of the meeting without signing the acknowledgment that she had received the letter. Respondent slammed the door as she left Mr. Hart's office. Mr. Hart received numerous complaints from parents and, as a result, transferred several students from Respondent's class to another class. On February 5, 2009, Mr. Hart observed Respondent arguing with a student in her classroom. He admonished her in writing to not be confrontational with students. Respondent's conduct on February 5, 2009, was inconsistent with Mr. Hart's admonishment to her on October 3, 2008. In an undated memorandum subsequent to January 20, 2009, Mr. Hart set forth the following issues that continued to be of concern despite his previous discussions with Respondent: Parent phone calls from her classroom Completing assignments Checking emails Inputting grades into Pinnacle (a computer database) Being prepared for instruction On February 18, 2009, Mr. Hart issued a written reprimand to Respondent for her failure to input student grades into Pinnacle. Respondent was placed on a PDP on February 13, 2009. Noted under the categories "Lesson Management" and "Lesson Presentation" were the failures to meet the following criteria: Orients students to classwork, specifies purposes of activities and relationship to the objectives; Prepares the classroom materials and equipment for the presentation of the lesson; Selects and uses appropriate instructional techniques including available materials and technology which support learning of the specific types of knowledge or skills; and Asks questions which are clear and require students to reflect before responding. During the PDP period that began February 13, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. On May 28, 2009, Mr. Hart completed an IPAS evaluation that rated Respondent unsatisfactory overall and as to the following five categories: "Lesson Management", "Lesson Presentation", "Student Performance Evaluation", "Classroom Management", and "Behavior Management." Mr. Hart rated Respondent satisfactory as to the remaining five categories. Mr. Hart placed Respondent on a second PDP that extended into the 2009-10 school year. At the end of the 2008-09 school year, Mr. Luciani retired. Before the start of the 2009-10 school year, Ms. Peebles became principal of Ashe Middle School. Respondent failed to enter grades and other data for students during the first marking period of the 2009-10 school year. That failure hindered the assessment of each student's needs and made it more difficult to monitor each student's progress. On November 19, 2009, Ms. Peebles conducted an IPAS evaluation for Respondent as to the PDP Mr. Hart had placed her on at the end of the 2008-09 school year. Ms. Peebles found Respondent to be deficient in the same five categories as Mr. Hart's evaluation, and she rated Respondent's overall performance as unsatisfactory. During the PDP period that began May 28, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. After her evaluation of November 19, 2009, Ms. Peebles had the options of referring Respondent to the Office of Professional Standards for further proceedings or placing Respondent on another PDP. Ms. Peebles elected to place Respondent on another PDP (the last PDP) because Ms. Peebles was new to the school and she wanted to give Respondent another chance to prove herself. At the conclusion of the last PDP, Ms. Peebles conducted an IPAS evaluation, which was dated April 19, 2010. Respondent remained unsatisfactory in the same five categories as the previous evaluations by Ms. Peebles and Mr. Hart, and her overall evaluation remained unsatisfactory. Throughout her employment at Ashe Middle School, Respondent exhibited a pattern of being absent on Fridays and Mondays. Respondent failed to correct that deficiency after having been counseled by administrators. During the 2009-10 school year, Respondent repeatedly failed to timely provide or leave appropriate lessons after having been counseled by administrators to do so. Respondent was instructed to give her lesson plans to Ms. Brown, the Reading Coach and Reading Department Chairperson, during that school year. Respondent never provided Ms. Brown a complete set of lesson plans the entire year. During the 2009-10 school year, Respondent repeatedly failed to demonstrate that she could control her classroom. She made multiple calls to security on nearly a daily basis and she continued to kick students out of class, which left them in the hallways, unsupervised. The Benchmark Assessment Test (BAT) is a county created test that is administered twice a year in September and again in November. The test is designed to measure the progress, if any, the student has made between the testing dates. The test is also used as a predictor for the Florida Comprehensive Achievement Test (FCAT). The vast majority of Respondent's student's test scores depict either no growth or a regression in all classes. A Mini-BAT is an assessment tool used to develop and provide effective lesson plans as well as student growth. The teacher is responsible for administering the assessment tool to her students and thereafter inputting the results in the computer database. During the 2009-10 school year, approximately half of Respondent's students either were not tested or had no score inputted after being tested. The DAR Assessment is a two-part standardized test designed to measure a student's ability at word recognition and all reading frequency. The test is administered twice a year, once in September and again in January. Ms. Brown administered the tests at Ashe Middle School during the 2009-10 school year. Ms. Brown scored the tests and gave the score results to Respondent, who was required to input the scores in the computer database. The Florida Department of Education (DOE) requires that 90 percent of the students complete the tests, which gives a 10 percent leeway for students who are absent on test days. Students are placed in reading classes based on their test result. The tests also measure each student's progress, or lack thereof, between the test dates. Forty-five percent of Respondent's students had no scores. Nineteen percent of those with scores had no gain. Mock FCATs are periodically administered to students following Mini-BATs. The Mock FCATs administered to Respondent's students during the 2009-10 school year were created by Ms. Brown. Ms. Brown utilized previous iterations of the FCAT that had been released by DOE in an effort to simulate the actual FCAT process in terms of difficulty and complexity. The tests are graded by computer and the scores are given to the teacher to input into the computer database. The results of the Mock FCATs are used to develop instructional plans for students. Sixty-three of Respondent's 111 students (or 57 percent) had no score inputted in the computer database. Nine students who did receive a score made no progress between the dates of the two tests. School Board entered into a contract with a consulting firm named Evans Newton, Inc. (ENI) to assist schools in need of improvement. In 2009-10 school year, ENI provided an assessment test that teachers were to use to monitor students' progress. Respondent administered the assessment test to her class, gave the results to Ms. Brown to score, and recorded the scores in the computer database after receiving the scored results from Ms. Brown. More than 40 percent of Respondent's students had no score recorded for the assessment test. Ms. Brown testified, credibly, that she returned all scored results to Respondent. The lack of a score for over 40 percent of her class can only be explained by Respondent's failure to do her job. Respondent either did not administer the test to those students, she did not give the test results to Ms. Brown to score, or she did not input the scores in the computer database after receiving the results from Ms. Brown. The FCAT Reading Learning Gain is the document through which DOE reports test score results to school districts. During the 2009-10 school year, DOE required a 60 percent learning gain. Respondent's students did not achieve that goal during that school year. For three of the four years she taught at Ashe Middle School, Respondent's classes failed to achieve their FCAT goals. The administrators at Ashe Middle School followed all applicable procedures in formulating and implementing the PDPs and IPASs at issue in this proceeding. After her IPAS evaluation of April 19, 2010, Ms. Peebles referred Respondent's case to the Office of Professional Standards, which resulted in the termination proceedings at issue.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this May 23, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2011.
The Issue The issue for determination is whether Respondent's professional service contract should be re-newed.
Findings Of Fact At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. At all times material hereto, Helen F. Ruby (Respondent) was employed with the Petitioner as a teacher pursuant to a professional service contract (PSC). Respondent has been employed with Petitioner as a PSC teacher for approximately 15 years. Respondent is a member of the United Teachers of Dade (UTD). As a member of UTD, Respondent is bound by all the provisions of the labor contract between Petitioner and UTD. The UTD contract requires the utilization of the Teacher Assessment and Development System (TADS) to evaluate the performance of teachers. All teachers employed by the Petitioner are evaluated pursuant to the TADS, which is an objective instrument used to observe minimal teaching behaviors. The TADS instrument evaluates teacher classroom performance in six categories which are preparation and planning; knowledge of subject matter; classroom management; techniques of instruction; teacher-student relationships; and assessment techniques. A seventh category, referred to as professional responsibility, reflects the duties and responsibilities of a teacher in complying with the Petitioner's rules, contractual provisions, statutory regulations, site directives, and all policies and procedures relating to record-keeping and attendance. This system of evaluation records deficiencies observed during the observation period and provides the prescription for performance improvement. At all times material hereto, the document used to evaluate Respondent's performance was the TADS document, more specifically, TADS, Classroom Assessment Instrument (CAI). The TADS CAI contained the six categories, not the seventh, in evaluating Respondent's performance. 1995-96 School Year During the 1995-96 school year, Respondent was assigned to John F. Kennedy Middle School (JFK) to teach Language Arts at the seventh grade level. On November 13, 1995, Respondent was formally observed by JFK's Assistant Principal. Respondent was found unacceptable in classroom management. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management. The prescription, which includes the prescriptive activities and a date certain for completion or submission of the prescriptive activities, is recorded on the TADS Record of Observed Deficiencies/Prescription for Performance Improvement (ROD). After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities on the ROD. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document; but Respondent did not provide a response on the TADS document to the noted deficiencies. On December 15, 1995, a mid-year Conference-for-the- Record (CFR) was held. Present at the mid-year CFR were the Principal, Assistant Principal, Respondent, and a UTD representative. During the mid-year CFR, Respondent's prescription status was addressed, due to her unsatisfactory performance in classroom management, and her future employment status with Petitioner. Respondent was provided an opportunity to address the deficiencies and concerns noted in the mid-year CFR; however, Respondent did not provide a response. A written summary of the mid-year CFR, dated January 8, 1996, was prepared by the Principal. Respondent received a copy of the summary. On March 11, 1996, Respondent was formally observed by the Principal. Respondent was found to be unacceptable in techniques of instruction and assessment techniques. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management, which were recorded on the ROD. After the formal observation, the Principal held a post-observation conference with Respondent at which the Principal discussed the deficiencies and the prescriptive activities. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. At times during the post-observation conference, Respondent was argumentative and resistant. On March 21, 1996, a CFR was held. Present at the CFR were the Principal, an Assistant Principal, Respondent, and two UTD representatives. During the CFR, Respondent's unacceptable performance in the classroom, resulting from the unacceptable observations of November 13, 1995, and March 11, 1996, was discussed. Respondent was notified that a second unacceptable consecutive summative would result in an external review and that a recommendation to not renew her professional service contract may be made. A written summary of the CFR, dated March 22, 1996, was prepared by the Principal. A copy of the CFR summary was provided to Respondent. The evidence is insufficient to conclude that a summative observation form was provided to Respondent or Respondent’s UTD representatives. By letter dated March 22, 1996, the Petitioner’s Superintendent of Schools notified Respondent, among other things, that she was being charged with unsatisfactory performance in classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Further, Respondent was notified that, if her performance deficiencies were not corrected during the 1996-97 school year, her employment with the Petitioner may be terminated; and that the assessment of her performance would continue throughout the remainder of the school year. By letter dated March 28, 1996, the Petitioner’s Associate Superintendent of Schools notified Respondent, among other things, that she had not been recommended for renewal of her PSC and that the Petitioner had acted on the recommendation to not renew her PSC. Further, Respondent was notified, among other things, that her performance would continue to be assessed throughout the 1995-96 and 1996-97 contract school years; and that, unless her performance deficiencies were remediated, her employment with the Petitioner would terminate at the close of the 1996-97 contract school year, with her last day of employment being June 14, 1997. On April 29, 1996, Respondent was formally observed by JFK's Assistant Principal. Respondent was found to be unacceptable in classroom management and techniques of instruction. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction, which were recorded on the ROD. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. As a result of Respondent receiving three unacceptable observations during the 1995-96 school year, JFK’s Principal requested an external review of Respondent’s classroom performance. An external review is a formal observation which requires an on-site administrator and an off-site region or district office administrator to be observers, a two-on-one observation. The observers are both in the teacher’s classroom at the same time; they observe the same lesson plan; and they rate the TADS CAI items independently, using their own judgment. After the two observers independently assess the teacher’s classroom performance, they meet and collaboratively prepare a prescriptive record of observed deficiencies which includes their observations substantiating the deficiencies. The prescription is recorded on the ROD. Written notice must be provided to the teacher that an external review will be conducted. The CFR summary dated March 22, 1996, provided Respondent with notice that an external review would be conducted if a condition precedent occurred, which was the occurrence of a second unacceptable consecutive summative. There is no dispute that the formal observations conducted on November 13, 1995, and March 11, 1996, comprise the first two consecutive TADS CAI observations; and that the formal observations conducted on March 11, 1996, and April 29, 1996, comprise the second two consecutive TADS CAI observations. There is disagreement as to whether the observations comprise the first unacceptable consecutive summative and the second unacceptable consecutive summative, respectively; however, a finding is so made and, therefore, the condition precedent was satisfied. Moreover, a finding is made that the mid-year CFR summary dated March 22, 1996, provided Respondent notice of the external review. On May 30, 1996, an external review of Respondent’s classroom performance was conducted by JFK's Assistant Principal (the on-site administrator) and by the Instructional Supervisor of the Division of Language Arts and Reading (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Each observer rated Respondent independently on the TADS CAI. The two observers did not discuss their ratings of Respondent prior to completing the TADS CAI rating. After performing their independent ratings, the two observers discussed Respondent’s performance. Neither observer changed their ratings during or after the discussion. As a result of Respondent receiving an unacceptable external review, the two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. After an external review, the on-site observer has the responsibility of conducting the post-observation conference and preparing and issuing the prescription. In accordance therewith, the Assistant Principal held a post-observation conference with Respondent and discussed the noted-deficiencies and the prescriptive activities. On June 14, 1996, Respondent was placed on prescription in the category of professional responsibility, the seventh category of TADS, by the Principal. Respondent was given prescriptive activities to assist her to overcome her deficiencies in professional responsibility, which were recorded on the ROD. The Principal held a conference with Respondent to discuss the prescription. Respondent’s annual evaluation was conducted on June 14, 1996. During the 1995-96 school year, the Principal and her staff provided Respondent with assistance to overcome the noted deficiencies. However, Respondent’s classroom performance remained unacceptable. Respondent’s overall performance was found unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, teacher-student relationships, assessment techniques, and professional responsibility. Respondent had failed to remediate these unacceptable categories. Respondent received an overall unacceptable annual evaluation for the 1995-96 school year. 1996-97 School Year JFK had a new principal for the 1996-97 school year. The Principal was informed as to Respondent’s prescription status. The Principal met with Respondent, reviewed the prescription with her, and offered to assist Respondent with the prescriptive activities. Respondent indicated to the Principal that she needed no assistance. By memorandum dated September 24, 1996, the Principal notified Respondent that, pursuant to the prescription, Respondent had failed to submit the prescriptive activities which were due on September 20, 1996, and that, therefore, she was in noncompliance with the prescription. Respondent was also notified that, if she failed to submit the prescriptive activities by September 25, 1996, the professional responsibility (category seven) prescription would be extended for noncompliance. Finally, the Principal provided Respondent duplicates of the June 14, 1996, prescription and TADS documents. Respondent failed to complete the prescriptive activities by September 25, 1996. On October 3, 1996, a CFR was held. Present at the CFR were the Principal, the Assistant Principal, Respondent, and the UTD steward. During the CFR, Respondent’s prescriptive status, noncompliance with the prescription and administrative directives, and future employment status with Petitioner were discussed. The June 14, 1996, prescription was extended to November 4, 1996, and Respondent was advised that her failure to complete the prescriptive activities by the prescribed deadline would be considered insubordination. A written summary of the CFR was prepared by the Principal. Respondent was provided a copy of the summary. On October 8, 1996, approximately one week after the CFR, Respondent was formally observed by the Principal. Respondent was found to be unacceptable in techniques of instruction and assessment techniques. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in techniques of instruction and assessment techniques, which were recorded on the ROD. After the formal observation, the Principal held a post-observation conference with Respondent at which the Principal discussed the deficiencies and the prescriptive activities. Respondent was notified that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. On October 14, 1996, a memorandum from the Principal was submitted to Respondent which notified Respondent that she had failed to submit all prescriptive activities which were due on October 4, 1996, in accordance with the prescription dated June 6, 1996. Respondent was also notified that the required prescriptive activities must be submitted by October 15, 1996; and that, if they were not, the prescription of June 6, 1996, would be extended due to noncompliance. On December 16, 1996, a mid-year CFR was held. Present at the mid-year CFR were the Principal, the Assistant Principal, Respondent, and the UTD steward. During the mid-year CFR, Respondent’s noncompliance with school site directives, noncompliance with Petitioner’s rules, prescriptive status, and future employment status with Petitioner were discussed. Additionally, the assistance provided Respondent to assist her in improving her classroom performance was reviewed. During the mid-year CFR, Respondent was advised that she was in her second year of unacceptable performance status and that she had failed to remediate her noted deficiencies. She was also advised that, if she failed to remediate the noted- deficiencies by the end of the 1996-97 school year, a recommendation would be made for the non-renewal of her PSC, which would be reported to the Florida Department of Education. Additionally, during the mid-year CFR, Respondent was advised that to remediate the noted deficiencies she must receive two consecutive acceptable summative decisions, which would require three formal observations. Respondent was further advised that, if she received two consecutive unacceptable summatives or four formal observations with no pattern of two consecutive acceptable or unacceptable summatives, an external review would be conducted. A written summary of the mid-year CFR was prepared by the Principal. Respondent received a copy of the summary. On February 6, 1997, Respondent was formally observed by the Assistant Principal. Respondent was found unacceptable in classroom management and techniques of instruction. As a result, Respondent was placed on prescription and prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction, which were recorded on the ROD. Respondent was required to complete the prescriptive activities by February 26, 1997. After the formal observation, the Assistant Principal conducted a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. Respondent was notified that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. Respondent failed to complete the prescriptive activities by February 26, 1997. By memorandum dated March 4, 1997, the Assistant Principal notified Respondent, among other things, that she was in noncompliance with the prescription because of her failure to complete the prescriptive activities by February 26, 1997; and that she had until March 5, 1997, to submit the prescriptive activities. On February 24, 1996, a CFR was held. Present at the CFR were the Principal, the Assistant Principal, Respondent, and a UTD steward. During the CFR, among other things, Respondent’s prescriptive status, unacceptable classroom performance, and noncompliance with school site directives were discussed. Respondent was advised that she had not remediated her deficiencies and was notified that, therefore, an external review was requested. Respondent was also notified that, if she did not remediate the noted-deficiencies, a recommendation would be made to terminate her employment with the Petitioner and not renew her PSC. A written request for an external review was made by the Principal. Respondent received a copy of the request. A written summary of the CFR was prepared by the Principal. A copy of the CFR summary was provided to Respondent, who was informed that she could provide a written response to the summary. Although not required for PSC teachers, an interim evaluation is used to inform PSC teachers on prescription of the latest summative decision. Also, the interim evaluation notifies the PSC teacher that he/she may be in jeopardy of losing their PSC at the end of the school year. On February 27, 1997, Respondent received an interim evaluation. She was found to be unacceptable in classroom management, techniques of instruction, and assessment techniques. The overall unacceptable interim evaluation was based on the compilation of the unacceptable formal observations of October 8, 1996, and February 6, 1997. On March 7, 1977, Respondent was formally observed by JFK's Assistant Principal. Respondent was found to be unacceptable in preparation and planning, techniques of instruction, and assessment techniques. As a result, Respondent was placed on prescription and prescribed activities to help her overcome her deficiencies in preparation and planning, techniques of instruction, and assessment techniques, which were recorded on the ROD. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. The Assistant Principal offered to provide any assistance that Respondent requested to assist her to improve her performance. The date for completion of the prescriptive activities was March 27, 1997. Respondent failed to timely complete the prescription, submitting the prescriptive activities on April 9, 1997. By letter dated March 10, 1997, the Petitioner’s Superintendent of Schools notified Respondent, among other things, that the deficiencies noted in Respondent’s performance in the 1995-96 school year had not been corrected, that he would be recommending to the Petitioner that Respondent’s PSC not be re-issued, and that the Petitioner would act on his recommendation on March 19, 1997. Further, Respondent was notified that her performance would continue to be assessed for the remainder of her contract. On March 19, 1997, the Petitioner acted on the Superintendent’s recommendation. The Petitioner decided not to renew Respondent’s PSC and not to reappoint Respondent to a teaching position. On April 16, 1997, an external review of Respondent’s classroom performance was conducted by JFK's Principal (the on- site administrator) and by the Instructional Supervisor of the Division of Language Arts and Reading (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in classroom management, techniques of instruction, and teacher-student relationships. Each observer rated Respondent independently on the TADS CAI. The two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. The two observers collaboratively prepared the prescriptive record of observed deficiencies and recorded the prescription on the ROD. After the external review, the Principal held a post- observation conference with Respondent. The Principal discussed the noted deficiencies and the prescriptive activities. Subsequent to the post-observation conference, the Principal assisted and assigned school staff to assist Respondent to improve her classroom performance and with her prescriptive activities. The date for completion of the prescriptive activities was May 9, 1997. Respondent completed the prescriptive activities on May 8 and 9, 1997. On May 29, 1997, an external review of Respondent's classroom performance was conducted by JFK's Assistant Principal (the on-site administrator) and by the Petitioner's Regional Director (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in classroom management, techniques of instruction, and teacher-student relationships. Each observer rated Respondent independently on the TADS CAI. The two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. The two observers collaboratively prepared the prescriptive record of observed deficiencies and recorded the prescription on the ROD. After the external review, the Assistant Principal held a post-observation conference with Respondent. The Assistant Principal discussed the noted deficiencies and the prescriptive activities. Subsequent to the post-observation conference, the Principal again assisted and assigned school staff to assist Respondent to improve her classroom performance and her prescriptive activities. The date for completion of the prescriptive activities was June 12, 1997. Respondent failed to timely complete the prescriptive activities, submitting them on June 13, 1997. During the 1996-97 school year, Respondent failed to remediate the noted deficiencies. Respondent’s annual evaluation was conducted on June 11, 1997. Respondent’s overall performance was found to be unacceptable in the categories of classroom management, techniques of instruction, and teacher-student relationships. Respondent had failed to remediate these unacceptable categories. Respondent received an overall unacceptable annual evaluation for the 1996-97 school year. By letter dated July 15, 1997, the Petitioner's Office of Professional Standards notified Respondent, among other things, that her performance assessment record for the 1995-96 and 1996-97 school years had been transmitted to the Florida Department of Education. Respondent was further informed that her performance assessment record was transferred due to Respondent receiving two consecutive unsatisfactory annual evaluations and that she was being provided written notice that her employment with Petitioner was being terminated, not being renewed, or that the Petitioner intended to terminate, or not renew, her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County enter a final order: Not renewing the professional service contract of Helen F. Ruby. Dismissing Helen F. Ruby from employment with the School Board of Dade County. Denying backpay to Helen F. Ruby. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998. COPIES FURNISHED: Twila Hargrove Payne, Esquire School Board of Dade County 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest 3rd Avenue, Suite 1 Miami, Florida 33129 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Mr. Roger C. Cuevas, Superintendent School Board of Dade County 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132-1308
The Issue The issues in this case are: (1) Whether Petitioner's allegations regarding Respondent schoolteacher's purported performance deficiencies are, in fact, true, thereby justifying Petitioner's placing Respondent on statutory performance probation; (2) If the first question is answered in the affirmative, then, Whether Respondent satisfactorily corrected the specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3)(d), Florida Statutes; and (3) Whether Respondent's employment should be continued or terminated.
Findings Of Fact Material Historical Facts At all times material to this case, Respondent Samuel K. Young ("Young") was a teacher in the Palm Beach County School District ("District"). From 1993 until July 2003, when Respondent Palm Beach County School Board ("Board") suspended him without pay, Young taught English at the Alexander W. Dreyfoos, Jr. School of the Arts ("Dreyfoos"), a magnet high school for students interested in an arts-centered education. In August or early September of 2001, shortly after the beginning of the 2001-02 school year, one of the Assistant Principals at Dreyfoos, Tanya Daniel, began routinely to observe Young, on an "informal" basis, while he was teaching his classes. These unscheduled, informal observations were triggered by students' complaints, of which Ms. Daniel, as Young's immediate supervisor, had been the recipient or been made aware. As time passed, the informal observations became increasingly formal. On October 25, 2001, Ms. Daniel conducted a formal evaluation of Young, using the Summative Observation Instrument, which is a tool that was developed for the Florida Department of Education's Florida Performance Measurement System. Another Assistant Principal, Leo Barrett, also started formally observing Young's classes. By early December 2001, Ms. Daniel had come to the conclusion that Young was not performing his teaching responsibilities in a satisfactory manner. Specifically, Ms. Daniel believed that Young was deficient in the areas of classroom management; presentation and organization; planning; student assessment; obedience to policies and procedures; and maintenance of the learning environment. Two points are especially notable about Ms. Daniel's negative assessment of Young. First, she placed considerable reliance on student feedback. Indeed, Ms. Daniel invited and encouraged Young's students to report to her on how he was doing in the classroom. Second, she did not rely upon student performance as measured, in accordance with Section 1008.22, Florida Statutes, by state and/or local assessments. On January 8, 2002, as a result of Ms. Daniel's evaluation, the Principal of Dreyfoos, Ellen Van Arsdale, placed Young on school-level performance probation pursuant to the procedures spelled out in the Classroom Teacher Assessment System (CTAS) Evaluation Handbook (the "CTAS"). (Under the Collective Bargaining Agreement Between the District and the Palm Beach County Classroom Teachers Association, effective July 1, 2002 to June 30, 2005 (the "Union Contract"), the District is required to conduct formal evaluations of teachers "in keeping with" the 1999 CTAS.) The CTAS provides that a teacher whose performance is found deficient must be afforded at least 30 calendar days to improve his performance to a satisfactory level. During that time, the teacher must be given "school-site assistance" to help him correct the identified performance deficiencies. Accordingly, a 30-day School-Site Assistance Plan was developed for Young and put into effect on January 8, 2002. The school-level performance probation that began in January 2002 constituted a new phase in the evaluation process. The purpose of the first phase, which lasted about three months (from September through December 2001), purportedly was to determine whether Young's performance was satisfactory or not. Thus, the first-phase evaluators should not have assumed at the outset that Young's performance was satisfactory or unsatisfactory. In contrast, during the second phase, the evaluators worked from the initial premise that Young's performance was, in fact, unsatisfactory, in the several areas noted by Ms. Daniel. The focus, therefore, was on whether Young was improving sufficiently to correct deficiencies that were assumed to exist. Throughout the school-level probationary period, a number of evaluators reviewed Young's performance. Ms. Van Arsdale conducted several evaluations, and Mr. Barrett performed at least one. Another was conducted by Dr. Lisa Troute, a Curriculum Specialist with the District. Others, too, were involved. None of the evaluators questioned the conclusion, which was based largely on Ms. Daniel's opinions, that Young's performance actually was deficient. Ms. Daniel did not observe Young's classroom performance during this second phase, evidently in consequence of Young's having voiced some concerns about her impartiality. Ms. Daniel remained an important participant in the process, however, and she continued actively to solicit students' opinions about Young's competence. On February 20, 2002, she interviewed at least three of Young's students, making handwritten notes (which are in evidence) to memorialize their respective assessments. Ms. Daniel asked one student to rate Young's performance on a scale from 1 to 10, with 1 being "poor" and 10 being "great"; the student gave Young a 3.5. There is no evidence that Ms. Daniel elicited the opinions of a random, representative sample of Young's students——or instead, for example, polled only the known malcontents. There is also no persuasive evidence that Ms. Daniel ever did anything but accept the students' mostly unfavorable opinions uncritically. What the evidence does establish is that Ms. Daniel put great weight on the students' opinions——so much so that the students she spoke with effectively became Young's evaluators themselves. The school-level probationary period was extended well beyond 30 days, and ended up lasting until the end of the 2001- 02 school year. By letter dated May 17, 2002, Ms. Van Arsdale informed the Superintendent that Young's performance remained unsatisfactory after 91 days of school-site assistance. Specifically, it was Ms. Van Arsdale's opinion that Young's performance was deficient in the following six areas, each of which is a designated "indicator" of competence under the CTAS: Management of Student Conduct; Presentation of Subject Matter; Learning Environment; Planning; Assessment; and Policies/Procedures/Ethics. Ms. Van Arsdale asked the Superintendent to place Young on statutory performance probation for 90 days, pursuant to Sections 231.29 and 231.36, Florida Statutes (2001). The assessment procedure used to evaluate Young during the school-level probation was not primarily based on the performance of students as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statutes. In fact, the evaluators placed no meaningful weight on student performance, so measured. Nevertheless, the Superintendent acceded to Ms. Van Arsdale's request. By letter dated May 20, 2002, the Superintendent notified Young that he would be placed on performance probation for 90 calendar days. The statutory performance probation——a distinct, third phase of the evaluation process——commenced in August 2002, at the beginning of the 2002-03 school year. On August 22, 2002, Young was given a Professional Development Plan, which called for the provision of assistance, as well as ongoing evaluations, through November 2002, when a final evaluation would be issued passing judgment on whether he had——or had not——corrected the alleged performance deficiencies. The statutory performance probation unfolded largely as had the school-level performance probation. Young was, again, observed and critiqued by a number of evaluators. Of the written evaluations in evidence, the most balanced is a report dated September 22, 2002, which Dr. Troute prepared concerning her observation of Young on September 10, 2002. Based on this contemporaneous report, the undersigned is persuaded that Dr. Trout then believed Young was a "satisfactory" teacher who could, with additional effort, be a "good" teacher. Others were less charitable, however, including Ms. Van Arsdale, who prepared Young's final evaluation based on her November 5, 2002, observation of his class. On the CTAS's evaluation form, Ms. Van Arsdale gave Young a rating of "concern" on five separate "indicators" of competence: Management of Student Conduct; Presentation of Subject Matter; Learning Environment; Planning; and Assessment. This resulted in an overall evaluation of "unsatisfactory." The assessment procedure used to evaluate Young while he was on statutory performance probation was not primarily based on the performance of students as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statutes. Indeed, once again, the evaluators placed no meaningful weight on student performance, so measured. By letter dated November 6, 2002, Ms. Van Arsdale notified the Superintendent that, in her opinion, Young had failed to correct performance deficiencies and therefore should be fired. The Superintendent agreed, and by letter dated November 14, 2002, informed Young that he would recommend to the Board that Young's employment be terminated. The Board later accepted the Superintendent's recommendation, and Young was suspended without pay, effective on or about July 16, 2003, pending his discharge. The CTAS A. Teachers who are evaluated under the CTAS are rated on 15 categories of qualities or abilities, which are referred to collectively as "indicators." Each indicator, such as, e.g., Management of Student Conduct, is best understood not as a single ability, but rather as a label for a skill-set, that is, a collection of qualities, abilities, or skills. The indicators are divided into two classes called "performance areas." The performance areas are: "A. Teaching and Learning" and "B. Professional Responsibilities." There are eight indicators under Teaching and Learning and seven under Professional Responsibilities. The CTAS uses a two-point rating scale. The only grades used for scoring a teacher on the 15 indicators are "acceptable" and "concern." The section of the CTAS's evaluation form where the grades are recorded is reproduced below, with the ratings from Ms. Van Arsdale's final evaluation of Young, dated November 6, 2002, added to show how the form is used in practice: A. TEACHING AND LEARNING ACCEPTABLE CONCERN 1. Management of Student Conduct X 2. Human Development and Learning X 3. Presentation of Subject Matter X 4. Communication X 5. Knowledge of Subject Matter X 6. Learning and Environment X 7. Planning X 8. Assessment X B. PROFESSIONAL RESPONSIBILITIES ACCEPTABLE CONCERN 9. Technology X 10. Record Keeping X 11. Continuous Improvement X 12. Working Relationships with Coworkers X 13. Working Relationships with Parents X 14. Policies/Procedures/Ethics X 15. Duties as Assigned by the School Administration X The teacher's overall evaluation rating of "satisfactory" or "unsatisfactory" depends entirely upon the combination of ratings awarded on the 15 indicators. The following combinations require an overall evaluation of "unsatisfactory": NUMBER OF CONCERNS SECTION A SECTION B 3 0 2 1 1 3 0 4 As can be seen, the indicators under Section A carry greater relative weight in the overall evaluation than those under Section B. Because Young received five "concerns" on his final evaluation, the CTAS dictated that he be given an overall "unsatisfactory" rating. In rating the various indicators, evaluators are supposed to consider numerous "performance criteria." The CTAS defines the "performance criteria" as "examples of descriptors which define the indicators." To be more precise, the performance criteria are specific behaviors, acts, and practices that the teacher should be performing as an outward manifestation of the teacher's command or mastery of the respective skill-sets known as indicators. Various performance criteria are set out in the CTAS as "bullet points" under each of the indicators. The first bullet point under the first indicator (Management of Student Conduct), for example, is: "[The teacher] specifies and explains rules of conduct and provides for practice of rules when appropriate." For each of the indicators, the CTAS further provides a set of "data collection sources." The CTAS defines the term "data collection sources" as "examples of multiple data sources used to determine a rating of 'acceptable' or 'concern.'" In other words, the data collection sources are lists of "evidence" that can be examined to determine whether, and perhaps how well, the teacher is performing the prescribed performance criteria. For example, the data collection sources for the indicator Planning are: observation reports; lesson plans; conference notes; assessment data; instructional materials; and written reports. B. As we have seen already, the CTAS defines the terms "satisfactory" and "unsatisfactory" in a completely objective fashion. It does so by specifying the rating combinations that will result in an overall evaluation of "unsatisfactory." Thus, anyone who knows the number of "concerns" that a teacher has received in Sections A and B can apply the formula and assign the overall grade; this ministerial function requires neither discretion nor judgment. What does demand discretion and judgment is rating the teacher's command or mastery of the respective indicators as either "concern" or "acceptable." This rating function requires that qualitative determinations be made at two distinct levels. First, for every indicator (skill-set), the evaluator must decide how well the teacher is executing each of the several subsidiary performance criteria (behaviors). Then, based on how well the teacher is executing the subsidiary performance criteria (behaviors), the evaluator must render a judgment as to how well the teacher is doing with regard to the indicator (skill-set) that comprises those performance criteria. At both stages of the analysis, to arrive consistently at fair conclusions——that is, to obtain similar results with respect to similarly performing teachers most of the time——requires (a) that there be uniform standards to guide evaluators in making the requisite judgment calls and (b) that the same standards always be applied, to all teachers in all evaluations. Thus, it is important to know what standards, if any, the CTAS prescribes. To begin, some negative findings are in order. First, the indicators are not standards upon which to make a judgment. They are, rather, the qualities to be judged, using appropriate standards of decision. Second, the performance criteria are likewise not standards. They define or prescribe the relevant facts to which, jointly and severally, standards should be applied, so as to make a judgment regarding one indicator or another.1 To illustrate, the fact that a teacher is observed "reinforc[ing] appropriate social behavior" tells us nothing about how well he does this, much less about how well he has mastered Management of Student Conduct, which indicator comprises the referenced performance criterion. Rather, to make a qualitative judgment regarding the teacher's performance of this practice requires some test, some basis, for distinguishing between good and bad performances. Similarly, the ultimate fact that the teacher acceptably "reinforces appropriate social behavior" tells us relatively little, presumably, about whether the teacher's mastery of the indicator Management of Student Conduct is acceptable or not, for there are eleven other performance criteria to be considered also in respect of this particular indicator. To make a qualitative judgment regarding whether the teacher has demonstrated an acceptable command of the skill-set known as Management of Student Conduct requires some sort of standard, some yardstick for measuring the relative importance of the teacher's demonstrated expertise (or lack thereof)——as determined by the evaluator——in the execution of the various performance criteria. The only "standards" that the evidence in this case persuasively establishes are the terms "acceptable" and "concern." Superficially, these terms seem to possess some degree of objective content. On reflection, however, it should be seen that they do not, a point which will be examined in greater detail below. The undersigned, moreover, has searched the CTAS and the record in vain for an adequate definition of these terms. As far as the proof in this case goes, these terms are criteria without content, and as such can be used as cover for almost any decision an evaluator might want to make. C. It is desirable at this point to elaborate on why the terms "concern" and "acceptable," by themselves, are not standards that evaluators (or administrative law judges or courts) can consistently and fairly apply to teachers across- the-board. As a starting point, envisage a spectrum comprising every conceivable level or degree of teacher talent, ranging from, in the abstract, "worst imaginable" (or "perfectly awful") to "best imaginable" (or "perfectly excellent"). It makes no difference, for present purposes, how exactly "worst" and "best" might be defined. Rather, it is sufficient to say of the "worst" teacher, in regard to any imaginable attribute, that "none could be worse." Conversely, it need only be said of the "best" teacher, in regard to any imaginable attribute, that "none could be better." As should be obvious, these "worst" and "best" teachers are constructs that serve to define the terminal points at either end of the "talent-level spectrum" we are calling to mind. This talent-level spectrum can be depicted with a simple drawing, as follows: Worst ? ? Best It can now be observed that all teachers, everywhere, must fall somewhere on this talent-level spectrum, between the two poles as we have defined them. Of course, the precise point at which any given teacher should be placed on the spectrum, at any given time,2 is a matter about which reasonable people, in every instance, could disagree. But that is presently of no consequence. Turning next to the facts of this case, the question is posed: Where, on this spectrum of talent, should the mark separating "concern" from "acceptable" be placed? Given their ordinary meanings, the words themselves provide no guidance in this regard. Either of the following, for example, is consistent with the plain meaning of "concern" and "acceptable": Worst ? ? ? Best Concern Acceptable Worst ? ? ? Best Concern Acceptable It does not matter how the mark-point in either example might be defined. What matters is the relationship between the mark and the respective poles. As the mark moves closer to the "worst" terminal, the "concern" band becomes narrower, leaving more teachers on the "acceptable" side. Conversely, moving the mark towards the "best" terminal narrows the "acceptable" band, consigning more teachers to the "concern" category. In the instant case, there is no persuasive evidence on which the undersigned can base a finding as to where the mark should be placed. As a result, the undersigned cannot make de novo findings regarding whether Young's execution of the performance criteria was "acceptable" or not, or whether, ultimately, his command of the indicators in dispute was of "concern," as the Board has alleged. To do that, the undersigned would need to apply standards of his own devising. Whatever merit such standards might have, they would not be the standards used to judge other teachers, and hence it would be unfair to apply them to Young. Moreover, there is no persuasive evidence in this case as to where the several evaluators placed the mark when they assessed Young's performance.3 The undersigned therefore cannot find that the evaluators all used the same standards——cannot even infer that they did. Consequently, assuming it were proper to do so, the undersigned could not review whether the evaluators acted fairly and appropriately vis-à-vis Young or whether they reached a "correct" (i.e. legally sustainable) judgment regarding his teaching performance.4 Student Performance The 1999 CTAS that was used in evaluating Young had been developed in 1998 and approved by then-Commissioner Tom Gallagher in January 1999. By letter dated January 25, 1999, Commissioner Gallagher informed the District that its CTAS had received "Full Approval." The Commissioner further instructed the District: [I]t will not be necessary for you to resubmit the [CTAS] unless there are statutory changes which affect the requirements for district instructional performance appraisal systems or unless you substantively revise your system for other reasons. In the very next legislative session following this letter, the legislature substantially amended the statute governing the procedures and criteria for the assessment of instructional personnel, which at the time was Section 231.29, Florida Statutes (1999).5 See Ch. 99-398, § 57, Laws of Florida. These statutory changes, which will be examined more closely in the Conclusions of Law below, took effect on June 21, 1999. Id. at § 78. The thrust of the relevant amendment was to require that, in evaluating teacher performance, primary emphasis be placed on student performance, as measured by "state assessments" and "local assessments." These latter two terms were defined, at the time, in Section 229.57, Florida Statutes (2000). Section 229.57 was subsequently transferred to Section 1008.22, Florida Statutes (2003). The District never amended the CTAS to reflect the statutory changes. Not surprisingly, therefore, the CTAS puts little or no particular emphasis on student performance6 and makes no specific references (that the undersigned can locate) to state and local assessments within the statute's contemplation.7 Consequently, as was mentioned several times above, none of the assessment procedures used during Young's protracted evaluation was primarily based on student performance as measured by state and/or local assessments administered annually as specified in Section 1008.22, Florida Statues (2003). Equally if not more important, however, is the lack of persuasive (indeed any) evidence in the record regarding the performance of Young's students as measured by state and/or local assessments. Because of this, it is impossible for the undersigned to make de novo findings based primarily on student performance as to either (a) whether Young's execution of the performance criteria was "acceptable" or not, or (b) whether, ultimately, his command of the indicators in dispute was of "concern," as the Board has alleged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Young of all charges brought against him in this proceeding; (b) providing that Young be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Young back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 17th day of March, 2004, 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 17th day of March, 2004.
The Issue Whether Brevard County School Board (Petitioner or School Board), has just cause to terminate the professional services contract held by Joyce D. Iloka (Respondent).
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise public schools within the Brevard County Public School District. As such, it has the authority to regulate all personnel matters for the school district, including those personnel decisions affecting the professional teaching staff at THS. At all times material to the allegations of this case, Respondent was an employee of the School Board and was subject to the statutes, rules, and regulations pertinent to employees of the school district. At all times material to this case, Respondent was assigned to teach drafting at THS. All allegations relate to Respondent's tenure at THS and the performance of her duties as a drafting instructor. By letter dated February 2, 2009, Petitioner notified Respondent that a recommendation would be made to the School Board to terminate her employment with the school district. At its meeting on February 10, 2009, Petitioner accepted the recommendation of the school administration and voted to approve Respondent's employment termination. Respondent timely requested an administrative hearing to challenge the decision of the School Board. Petitioner charged Respondent with failure to correct deficiencies identified in a performance plan designed to assist Respondent to remediate unacceptable defects in her teaching performance. Second, Petitioner alleged that the deficiencies noted by THS personnel also constituted an additional basis for termination: incompetency. Respondent maintains that student performance must be considered in the review of her performance and that she was competent and qualified to perform her teaching responsibilities and had done so for a number of years without concern from the THS administration. Respondent began employment with the school district in 1996. She was assigned to THS from 2004-2008. From her first assignment until the 2007/2008 school year, Respondent received satisfactory performance evaluations. Petitioner utilizes an instructional personnel evaluation system known as the Performance Appraisal System (PAS). PAS was approved by state authorities and was cooperatively developed by teachers and administrators for use in Brevard County. PAS details the procedures, method, and forms to be utilized in the completion of instructional personnel evaluations. All such criteria were met in the evaluations performed of Respondent's work. Additionally, school administrators who perform employee evaluations must be thoroughly trained in PAS and must conform to the uniformity afforded by the PAS instrument. All administrators identified in this cause who performed evaluations of the Respondent were trained and were fully certified to evaluate personnel based upon the PAS instrument. Ron Philpot is an assistant principal at THS. He has worked in Brevard County for approximately 37 years and has been assigned to THS for the last 17. Lori Spinner is the principal at THS. For the 2006/2007 school year, Mr. Philpot was assigned to evaluate Respondent. Dr. Spinner signed off on Respondent's 2006/2007 performance evaluation on February 14, 2007. Respondent's 2006/2007 PAS evaluation found her to be overall "high performing." Mr. Philpot was the only administrator/observer who visited Respondent's classroom in order to complete the 2006/2007 evaluation. In his many years of performing evaluations, Mr. Philpot has given only one unsatisfactory evaluation. On December 4, 2007, Dr. Spinner visited Respondent's classroom for the purpose of observing the class and Respondent's performance. On that date there were 17 students present and Dr. Spinner made visual sweeps of the classroom every ten minutes to determine the engagement level of the students. For the time period from 12:25-12:55 p.m., no fewer than two and no more than four students were off-task or not engaged in the lesson. Dr. Spinner remained in Respondent's class for 45 minutes and completed notes from her observation. Pertinent to the allegations of this case are the following observations entered by Dr. Spinner: Instructional Organization - No teacher-based questioning was used during the entire lesson. No learning objective is evident and no agenda or objectives are noted on the board. Materials are not organized and six incidents of non-instructional/unrelated talk were noted. In the middle of the lesson, the teacher states, "Where are you third block?" "What are you working on?" Directions for activity are vague and non- specific. Teacher states "Put in a window anywhere"; "Put in a door somewhere". Teacher circulated several times to address individual concerns. Presentation of Subject Matter - Only 1 concept was presented during the lesson (rotating windows and doors)and appeared to be a review. No new concepts were presented. Instructions for the project were inadequate and vague. Visuals on the board are illegible and difficult to see. Students demonstrated confusion with assignment. Several questions went unanswered or ignored. Communication - Vague and sporadic. No teacher questioning for comprehension. Student questions went unanswered or hands- raised were ignored. In response to one question, teacher states, "I think it says something about that in your book, I think it says . . ." Teacher expressed confusion in demonstrating a plot plan. Was not able to implement the correct commands with Mechanical Desktop Architect program. Management of Conduct - Several students not engaged during lesson. Five incidents of misconduct were not addressed during the lesson. Based upon the observations noted above, Dr. Spinner met with Respondent to provide her with an interim evaluation of her performance. Of the nine individual assessment categories, Dr. Spinner identified only two items that needed improvement. Both were noted under the "Instructional Strand" heading. Comments entered by Dr. Spinner advised Respondent: Ms. Iloka had several students off task or not engaged in the lesson, throughout the class period. She did not have materials prepared in advance which resulted in lost instructional time. Teacher-student interactions often included unrelated talk and off-task discussions. There were long delays during the instructional lesson and instructions/directions were not clear for students. Requirements for the activity were not presented in advance and directions were vague. This resulted in delays in learning and gaps in instructional activities. Presentation of instructions and project directions were vague and difficult for students to follow. Requirements were not presented in advance. There was no instructional questioning during the lesson to ensure comprehension. Concepts were presented with examples only. Students did not have an instructional visual to reference as they worked with the program. Dr. Spinner attempted to communicate the areas of concern noted above but Respondent was resistant. Further, Dr. Spinner sought to encourage Respondent to continue her education and professional development as a means of continuous professional growth. Dr. Spinner hoped that Respondent would recruit more students into the drafting program because the enrollment had steadily declined during Respondent's tenure at THS. None of Dr. Spinner's suggestions were well-received by Respondent. On January 30, 2008, Dr. Spinner observed Respondent's class from 1:55-2:40 p.m. As before, Dr. Spinner made a visual sweep of the class to determine student engagement every ten minutes. Again, as before, Dr. Spinner observed two to four students not engaged during the sweeps. Many of the comments generated by the January 30, 2008, observation mirrored the prior observation. Dr. Spinner felt Respondent had made no serious effort to improve the areas of concern that needed improvement. The interim PAS evaluation signed by Dr. Skinner and Respondent on February 1, 2008, included three categories that needed improvement and noted that Respondent's overall evaluation needed improvement. To provide assistance for Respondent, Dr. Skinner assigned a teacher/peer mentor at the school level to provide direction and help to the Respondent in order to remediate the deficient areas of performance. Respondent did not avail herself of the mentor and did not implement meaningful changes to her instructional content or delivery. Later Dr. Skinner secured a mentor teacher from outside the school to assist the Respondent. Again, Respondent did not implement the suggestions made by that mentor. Dr. Spinner prepared professional development assistance (PDA) forms for areas of concern in order to identify the behaviors that were deficient, the strategies for improvement of the deficiency, and the assistance that the school would provide to Respondent. For example, the PDA dated February 1, 2008, to improve management of student conduct noted that peer mentor, Jane Speidel, would assist Respondent to develop a classroom management plan so that students who are off-task can be appropriately engaged in the learning process. According to Ms. Speidel, Respondent did not want assistance in this regard and had "no desire to adopt any new changes." On February 19, 2008, Dr. Spinner again observed Respondent's class. Many of the same deficiencies in the categories of instructional organization, presentation of subject matter, communication, and management of conduct were noted. At one point during the observation, Respondent received a sub sandwich and a drink from a colleague. As Respondent had just finished a duty-free lunch time prior to the observation time, the delivery of food during a class period seemed inappropriate to Dr. Skinner. Dr. Skinner’s next observation of Respondent's class was on February 28, 2008. Deficiencies were listed in the areas of instructional organization, presentation of subject matter, communication, and management of conduct. Many of the problems noted in prior observations were continuing. The common thread running through each observation was the failure on Respondent's part to even attempt to incorporate new strategies or concepts into her teaching effort. Specifically, with regard to student performance, students remained off task. Students continued to be confused by vague or confusing directions and exhibited an indifference to drafting. Students were observed sleeping, eating, playing solitaire, and computer games or surfing the Internet when they should have been working on projects or completing appropriate drafting assignments. On March 6, 2008, Dr. Skinner gave Respondent her annual evaluation. Unsurprisingly, Respondent was given an overall evaluation of unsatisfactory. As Respondent had made little or no effort to improve in the areas noted as deficient during the school year (as delineated in prior observations), Respondent was advised: Ms. Iloka is expected to improve in the areas noted as unsatisfactory. A formal plan and support has been provided to assist her in becoming more effective with her students. She is expected to demonstrate improvement as an expectation for continued employment. At the conclusion of the annual PAS evaluation, Respondent was advised that a 90-day probationary period would begin at the start of the 2008/2009 school year. Accordingly, from August 11, 2008, Respondent was subject to PDA plans to address deficiencies in the categories of instructional organization and development, presentation of subject matter, and management of student conduct. The same three areas of concern that were identified throughout the 2007/2008 school year continued to be a concern. On August 11, 2008, Respondent signed a letter acknowledging that she would be on probationary status for 90 days and that she would be evaluated periodically during that time. A resource teacher from the county, John Hays, was identified to Respondent as someone who would provide support and information for presenting the subject matter appropriately and developing a classroom management plan. During the fall of 2008, Respondent was observed on several occasions. None of the visits to Respondent's classroom evidenced any significant improvement on her part to address the deficient areas of performance. Assistant Principal Jerri Mallicoat completed PAS evaluations that noted the same deficiencies. Respondent did not complete lesson plans with sufficient detail so that a substitute could understand and step in for an absence. Respondent did not develop a classroom management plan to ensure that off-task students could be redirected to the assignment. Further, students committing violations of school rules (such as eating in the classroom) were not appropriately disciplined and redirected. Respondent did not avail herself of resources available through the school site mentor or county resource opportunities. Petitioner afforded Respondent with opportunities for improvement through in-service classes and mentor teachers. Respondent is a non-degreed vocational industrial arts teacher. Drafting and other vocational industrial arts classes are commonly taught by credentialed persons who achieve some industry-recognized authorization as sufficient to demonstrate knowledge of the subject matter. Respondent's knowledge of her subject area is not questioned. Her ability to translate that knowledge in a meaningful manner to a classroom of students while maintaining order and on-task behavior and her failure to recognize her need to improve performance in these areas is the subject of this cause. For whatever reason, Respondent would not or could not improve performance in the deficient areas. During the 2008/2009 school year THS used block scheduling. Teachers would have students for 90-minute blocks. Respondent was challenged to fill that time with educational content and maintain students in on-task efforts. Respondent had two blocks of drafting students. Enrollment in drafting declined such that the remainder of Respondent's work day was spent as a substitute for other teachers. Within a block, Respondent had multiple levels of drafting students, first-time drafting students up to the more advanced levels. Each level of proficiency required appropriate instruction. Drafting, like other vocational industrial arts classes, does not have a state-mandated performance assessment tool. Drafting students are recognized in the private sector by whether they are able to achieve an industry-recognized testing standard of performance. Classroom performance at THS was based upon proficient use of the program utilized to create plans and the written materials that accompanied the computer work. Students eating, sleeping, playing solitaire, computer games, or surfing the Internet did not demonstrate proficient use of drafting skills. All of these behaviors were repeatedly observed in Respondent's class. Respondent did not remediate the performance deficiencies noted in the evaluations of the 2007/2008 and 2008/2009 school years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Brevard County School Board enter a final order terminating Respondent's employment with the School District. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2010. COPIES FURNISHED: Joseph R. Lowicky, Esquire Glickman, Witters and Marrell, P.A. The Centurion, Suite 1101 1601 Forum Place West Palm Beach, Florida 33401 Jeffrey Scott Sirmons, Esquire Johnson, Haynes, & Miller 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Richard DiPatri, Ed. D., Superintendent Brevard County School Board 2700 Fran Jamieson Way Viera, Florida 32940-6601
The Issue Whether Respondent's employment with Petitioner should be terminated due to two years of unsatisfactory and unacceptable performance.
Findings Of Fact At all times relevant, the Respondent, Robert Nolan, Jr., was employed as a seventh and eighth grade math teacher at Rockway Middle School ("Rockway"). Nolan has been employed by the School Board as a math teacher since the 1987/88 school year. The School Board has adopted Rule 6Gx13-4A-1.21, V., which provides: Members of the instructional staff of the public schools, subject to the rules of the State and District Boards, shall teach efficiently and faithfully, using the books and materials required, following the prescribed courses of study, and employing approved methods of instruction as provided by law and by the Rules of the State Department of Education. Article XI of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: Classroom teachers are required to develop weekly lesson plans which shall reflect one or more objectives, activities, homework assignments, and a way of monitoring student progress. Principals or supervising administrators may suggest, but not require, a particular format or organization. Only where a principal has documented deficiencies through classroom observation, using the Teacher Assessment and Development System (TADS), may a teacher be required to use a set form in preparation of lesson plans. Article XIII, Introduction, B., of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: The parties agree to the continuation of a developmental approach to improving teaching performance, using the TADS. In accordance with Florida Statutes, no disciplinary action shall be taken, based on incompetence in the absence of documentation and procedures required by TADS. Article XIII, Section 2, of the Contract between the Dade County Public Schools and the United Teachers of Dade provides in pertinent part: Any teacher whose performance is assessed unacceptable in any observation category shall be entitled to a plan of professional growth practices which shall include reason- able timeframes for implementation. . . Teachers shall follow the growth practices required. Failure to implement required professional growth practices or to correct deficiencies for which professional growth was required shall constitute just cause for disciplinary action in accordance with the due process provisions in this Contract. Where an administrator has substantiated, through two formal observations, as stipulated above, that teaching is unaccep- table in any of the observation categories, DCPS may utilize diagnostic tests and assessment techniques to identify teaching weaknesses and strengths and to assist in selecting appropriate professional growth practices to improve teaching performance. . . Where teaching deficiencies are diagnosed as a result of tests or assessment techniques, DCPS shall require professional growth practices which shall be obligatory on the teacher. Respondent's employment history with the Petitioner includes numerous instances of unsatisfactory and deficient classroom performance reflecting an unwillingness or inability to fulfill his teaching duties and responsibilities. On June 2, 1993, Carole Abrams ("Abrams"), an assistant principal at Rockway at the time, reviewed Respondent's grade book and noticed that Respondent did not have complete grades for the four nine-week grading periods; Respondent was placed on notice that he was required to have a completed grade book by the end of the school year. Even though Respondent was directed to complete his grade book by the end of the school year and was offered assistance so that Respondent may complete his grade book, Respondent failed to complete his grade book as directed. On October 13, 1993, Abrams formally observed Respondent's classroom performance and found Respondent unacceptable in three categories of the Teacher Assessment and Development System ("TADS"): preparation and planning; knowledge of the subject matter; and techniques of instruction. At the time of the observation on October 13, 1993, Abrams concluded that Respondent was not following a particular lesson plan. When Abrams asked to see Respondent's lesson plans during the observation on October 13, 1993, Respondent produced lesson plans that were two years old and belonged to another teacher. During the October 13, 1993 observation, Respondent appeared confused, spent the entire lesson on one mathematical problem, was not able to demonstrate to his students how to complete the problem mathematically, and was unable to accurately answer students' questions regarding the math problem. Respondent was found unacceptable in the area of techniques of instruction due to his inability to answer students' questions, to demonstrate the mathematical process for arriving at the correct answer, or to address the necessary topics of the lesson that Respondent was attempting to give. As a result of Respondent's unacceptable classroom performance as demonstrated by the October 13, 1993 observation, Respondent was placed on prescription and was provided with assistance and activities for his performance improvement. Part of Respondent's prescription required that Respondent provide weekly lesson plans, but Respondent failed to do so, even after receiving memoranda from Abrams reminding Respondent of this requirement. On December 7, 1993, Respondent's classroom performance was observed by Patricia Duncan ("Duncan"), another assistant principal at Rockway; Duncan found Respondent unsatisfactory in the area of assessment techniques. Duncan found that Respondent's assessment of students' work was deficient because the grades in Respondent's grade book did not correlate with the days that class was in session, nor with work contained in the students' folders. During the December 7, 1993 observation, Duncan also noted that Respondent did not have the required work folders for some of the students listed in Respondent's classroom. In an effort to assist Respondent, Duncan provided Respondent with a prescription for Respondent's performance improvement which required that Respondent produce his grade book and student folders to Duncan for review and seek the assistance of the math department chairperson. On December 15, 1993, a mid-year Conference-for-the-Record ("CFR"), was held with Respondent and Jorge Sotolongo ("Sotolongo"), the principal of Rockway at the time, to address the results of Respondent's observations, Respondent's unsatisfactory performance, Respondent's failure to timely complete activities and assignments designed to help him reach an acceptable level of performance. At the CFR on December 15, 1993, Respondent was advised that if he had to remain on prescription, he would receive an unacceptable annual evaluation at the end of the 1993/94 school year. Although Respondent already had been reminded of the requirement that he complete his prescription, on February 4, 1994, Respondent again had to be notified of his failure to complete his activities and assignments as required by Respondent's prescription. On April 12, 1994, Sotolongo formally observed Respondent's classroom performance and found Respondent's performance unsatisfactory and unacceptable under TADS in: preparation and planning; and assessment techniques. During the observation on April 12, 1994, Sotolongo noted: that Respondent did not have lesson plans for the class Respondent was teaching; that Respondent's grade book showed that Respondent did not have the required two grades per week for each student; that Respondent had failed to note assignments contained in the students' work folders in his grade book; and that Respondent had failed to properly identify students in his grade book. Including the observation on April 12, 1994, Respondent had been formally observed four times during the 1993/94 school year, and Respondent's classroom performance had been found unacceptable in three out of the four observations. (An observation by Sotolongo on February 10, 1994, scored Respondent's performance as satisfactory.) Since Respondent had received three unacceptable observations during the 1993/94 school year, on May 5, 1994, Sotolongo requested that the School Board perform an external review of Respondent's classroom performance. On May 16, 1994, an external observation of Respondent's performance was conducted by: Billy Birnie, the School Board's Regional Director of Instructional Support; and the principal, Sotolongo. The external observation of Respondent's performance concluded with Respondent being rated, by both observers, unacceptable under TADS in: preparation and planning; knowledge of the subject matter; and assessment techniques. The Respondent questioned whether Birnie and Sotolongo improperly collaberated in completing their TADS observation reports on the observation on May 16, 1994. But both explained that their reports were completed separately, after which they conferred, as contemplated (and, indeed, required) by the TADS procedures. There was no evidence of any improprieties. During the external observation on May 16, 1994, Respondent failed to, and did not even attempt to, follow the lesson plans he had prepared for that day. In addition, the Respondent's lecture was not directed towards any of the objectives listed in Respondent's lesson plans, and Respondent was unable to properly present a lesson on the metric system. A review of Respondent's student work folders during the classroom observation on May 16, 1994, revealed that Respondent did not employ a variety of test formats as required by TADS; rather, Respondent used only those tests contained in the student textbook. As a result of Respondent's unsatisfactory performance and unacceptable observation of May 16, 1994, Respondent was provided with additional activities to assist him in improving his performance. Respondent failed to complete the required assignments and activities related to his unacceptable external observation of May 16, 1994. On June 8, 1994, a CFR was held with Respondent to address Respondent's continuing unsatisfactory performance, Respondent's failure to complete assigned activities, and Respondent's annual evaluation. In accordance with TADS, Respondent also was placed on prescription in the area of professional responsibility due to his failure to comply with directives regarding his assigned activities and his failure to complete the assigned activities. At the CFR on June 8, 1994, Respondent was informed that due to his unsatisfactory performance, he would stay on prescription for the remainder of the 1993/94 school year and that he would start the 1994/95 school year on prescription. By the end of the 1993/94 school year, Respondent had been formally observed five times and Respondent's performance had been rated unacceptable in four out of the five observations. On June 8, 1994, Respondent received an unacceptable annual evaluation for the 1993/94 school year, which reflected that Respondent had been rated unacceptable in: preparation and planning; knowledge of the subject matter; assessment techniques; and professional responsibility. On June 17, 1994, Respondent was notified by certified letter that, because he had received an unacceptable annual evaluation for the 1993/94 school year, Respondent was entitled to request a review of the evaluation. Respondent started the 1994/95 school year on prescription. On October 11, 1994, Respondent was again formally observed by Sotolongo and, in accordance with TADS, was found unacceptable in knowledge of the subject matter and techniques of instruction. During the observation on October 11, 1994, Respondent was unable to provide a correct answer to a mathematical word problem even after resorting to a calculator; the incorrect answer to the problem remained on the board for the duration of the class. Respondent also was found unacceptable in the area of techniques of instruction in the observation on October 11, 1994. Respondent failed to provide feedback to students who gave incorrect answers to the math problems being discussed. Respondent was prescribed activities to assist him in overcoming his deficiencies as identified in the classroom observation on October 11, 1994. He was directed to complete these activities by November 4, 1994. By November 22, 1994, Respondent still had not completed the activities. In a further effort to assist Respondent with his performance improvement, Respondent was referred to the School Board's Employee Assistance Program after Sotolongo learned that Respondent had been arrested for possession of cocaine. On December 1, 1994, almost a year after Duncan first formally observed Respondent's performance, Duncan again observed Respondent's classroom performance. Duncan found Respondent unacceptable and unsatisfactory under TADS in knowledge of the subject matter after Respondent was unable to correctly present a lesson involving graphs (instead giving inaccurate information to his students.) On December 7, 1994, a mid-year CFR was held between Respondent and Carmen Marinelli ("Marinelli"), the new principal at Rockway, to discuss Respondent's two unacceptable observations during the 1994/95 school year and Respondent's failure to complete the prescription plan activities assigned him, and to offer Respondent assistance in remediating his unsatisfactory performance. At the CFR on December 7, 1994, Respondent again was reminded that completion of his assigned activities was part of his professional responsibility, and Respondent was advised that if he did not remediate all of his deficiencies by April, 1995, his Professional Service Contract (PSC) would not be renewed. On February 13, 1995, Marinelli performed a formal observation of Respondent's classroom performance and, in accordance with TADS, found Respondent unsatisfactory in: preparation and planning; and knowledge of the subject matter. Respondent was again prescribed activities to assist him in overcoming the deficiencies identified in the classroom observation on February 13, 1995. During the observation on February 13, 1995, Marinelli noted that Respondent did not have lesson plans for his class and that Respondent was unable to correctly present a lesson which required the use of fractions. As a result of Respondent having been formally observed three times during the 1994/95 school year and because Respondent's performance had been rated unacceptable in all three observations, Marinelli requested another external observation. On March 27, 1995, Marinelli and Dr. Hector Hirigoyen, a regional mathematics coordinator, conducted an external observation of Respondent's classroom performance and found Respondent unsatisfactory in: preparation and planning; knowledge of the subject matter; and assessment techniques. During the observation on March 27, 1995, Respondent's lesson plans did not reflect any planned activities for his class, and Respondent's grade book did not contain any grades for a three-week period. Respondent also gave students incorrect information regarding a mathematics vocabulary lesson. After the observation on March 27, 1995, Respondent was prescribed still more activities to assist him in overcoming the deficiencies observed. He also was offered additional assistance from the district supervisor, assistant principal, or department chairperson. By letter dated March 28, 1995, Respondent was notified by the Superintendent of Schools that the deficiencies noted in Respondent's performance during the 1993/94 school year had not been corrected and that the Superintendent was recommending that Respondent not be issued a new PSC. Additionally, the Superintendent's letter of March 28, 1995, notified Respondent that assessment of Respondent's performance would continue for the remainder of Respondent's contract. On May 3, 1995, Marinelli held a CFR with Respondent to discuss the status of his prescription, to remind Respondent that if he remained on prescription he may not be reappointed, and to review Respondent's interim annual evaluation of unacceptable performance. On May 12, 1995, Martha Boden, an outside observer, conducted a formal observation of Respondent's classroom performance and found Respondent's techniques of instruction to be unsatisfactory. Boden cited Respondent's failure to allow students to answer questions and failure to determine whether students understood the lesson being given as the reasons for Respondent's unacceptable performance. During the observation on May 12, 1995, when the school year was close to ending, the outside observer also found that Respondent had only two grades per student in his grade book. On June 9, 1995, Marinelli held another CFR with Respondent to address Respondent's unsatisfactory performance during the 1994/95 school year and to advise Respondent that, since he had not remediated his deficiencies, he would receive an overall unacceptable annual evaluation, and that his PSC would not be renewed. On June 9, 1995, Respondent received an unacceptable annual evaluation for the 1994/95 school year in: preparation and planning; knowledge of the subject matter; techniques of instruction; and professional responsibility. The Respondent has argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of offense taken at his expression of "concern with the inadequacies of the textbooks that he was directed to use in his math classes." This argument is rejected. First, the Respondent's testimony on the textbook argument consisted of speculation that one assistant principal who evaluated him (Carole Abrams) might have taken offense when the Respondent went "over her head" and took direct action to have copies of textbooks delivered to the school. According to the Respondent's testimony, this argument would not apply to any of the other educators who observed the Respondent and judged his performance to be less than satisfactory. In addition, the Respondent did not testify that any offense was taken even by Abrams at the Respondent's insinuation that the textbooks were inadequate. There was no evidence that the textbooks were inadequate; rather, the evidence was that they were new and that the Respondent wanted to use his old textbooks because he was more accustomed to and comfortable with them. The Respondent also argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of envy on account of his successful application for grants from the School Board. Although this argument is based on testimony from the Respondent, that testimony is rejected. It is not found that any, much less all, of the educators who observed the Respondent and judged his performance to be less than satisfactory were envious of the Respondent's grants, or that any of their evaluations were affected by the Respondent's grant applications or grants. The Respondent also argued in his Proposed Recommended Order that his unsatisfactory performance evaluations were the result of TADS's inflexibility and inability to fairly evaluate the Respondent's performance under his grants. However, the Respondent's grants had no impact on lesson planning or grading, or on the evaluation of his performance in those areas under TADS. (Indeed, in response to criticism that he had no lesson plans, the Respondent produced another teacher's lesson plans from a time period that preceded the Respondent's grant by two years and claimed that he was following them. As for grading, the Respondent already had been cited under TADS for failing to maintain sufficient grades in his grade book during the 1991/1992 school year, which was before he started implementing his first grant.) As for teaching techniques, another area in which the Respondent consistently performed poorly, it is found that TADS was flexible enough to allow for a fair evaluation of the Respondent's performance under his grants. TADS was specifically formulated to allow for any type of effective teaching and for a variety of teaching methods, and the areas observed under the techniques of instruction category would not conflict with an individual teacher's teaching style or method. The problem was not that the Respondent was teaching under a grant; the problem was that he was not teaching well, grant or no grant. (Indeed, for most of the time the Respondent claimed to have been utilizing special teaching techniques under the grant to "teach down" to students in the "At Risk Program" to prevent them from dropping out, he testified that he actually was teaching mainstream students; the problem was the Respondent's inadequacies, not his students.) The Respondent also argued in his Proposed Recommended Order that he did not get the assistance to which he was entitled so as to improve his unsatisfactory performance. But the proof of the School Board's attempts to assist the Respondent was overwhelming. Indeed, in the face of the evidence, at final hearing, the Respondent testified to the exact opposite of what he then argued in his Proposed Recommended Order--he complained that he was given too much assistance, which hindered his attempts to improve his performance. 1/ Other arguments the Respondent attempted in the course of his testimony were not even argued in his Proposed Recommended Order. The Respondent testified that some of the people from whom he sought assistance seemed afraid to help, but he did not identify who these people were, and it is not found that anyone declined to help the Respondent out of fear of repercussions. He also testified that he was unable to take advantage of planning periods to prepare lesson plans because he was required to cover for other teachers who had to miss classes to coach softball, but softball season was in the spring and could not excuse the Respondent's failure to prepare lesson plans in the fall and winter. The Respondent also testified that he tried to avoid having to cover for teachers while he was on prescription and that the persistence of these teachers indicated that administrators had overridden the Respondent; but neither the teachers nor the admin- istrators were identified, and it is not found that any administrator required the Respondent to cover classes for those teachers while he was on prescription. The Respondent also testified that the grant required him to do extra work arranging field trips, leaving him less time for lesson planning, teaching and completing prescrip- tions; but, in the 1994/1995 school year, the Respondent used some of his grant money to hire a "para-professional" to help him.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Dade County enter the final order: (1) that Robert Nolan, Jr., not be issued a new Professional Service Contract; (2) that Robert Nolan, Jr., be dismissed as an employee of The School Board of Dade County, Florida; and (3) that Robert Nolan's suspension of April 12, 1995, be sustained and that he receive no back pay for the period of this suspension. RECOMMENDED this 24th day of October, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1996.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher, for alleged violations of various School Board rules and policies, as outlined in the Superintendent’s letter to Respondent, dated June 15, 2009.
Findings Of Fact Petitioner is the School Board of Sarasota County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools within Sarasota County, in accordance with Part II, Chapter 1001, Florida Statutes (2009). The School is a middle school operated by Petitioner. Petitioner employed Respondent, Brian Berry, as a teacher at the School for several years. Respondent taught students with ESE designation. Respondent is an “instructional employee” under the Instructional Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association (“Union”), and Petitioner (July 1, 2006 – June 30, 2009, for the 2008-2009 year)(the “Collective Bargaining Agreement”). Article XXV of the Collective Bargaining Agreement governs disciplinary actions against teachers, including Respondent. The Collective Bargaining Agreement requires there to be just cause for any discipline. Normally, the following progressive discipline steps are administered: (1) verbal reprimand; (2) written reprimand; (3) suspension and, (4) termination. Following progressive discipline is not required “in cases that constitute a real immediate danger to the district or other flagrant violations.” During the 2008-2009 school year, Respondent’s classroom was one of four classrooms arranged in a quadrant fashion around a center internal office that connects the four classrooms to each other. Respondent’s room was in the southwest quadrant. Holmes had the room in the northwest quadrant. Brooks had the room in the southeast quadrant. Like Respondent, Holmes and Brooks taught ESE students. Brooks and Respondent shared a paraprofessional, Collins. Bazenas became the School’s principal in April 2006, and has been its principal since that time. Before resorting to the progressive discipline system, School administration routinely counsel employees on an informal basis when there is a concern. Generally, the counseling occurs as a conversation between the administrator and instructor. This informal counseling is non-punitive. Administrators also use Memorandums of Instruction to clarify expectations. A Memorandum of Instruction is also non-punitive in nature; however, failing to abide by the expectation contained in a Memorandum of Instruction could warrant discipline. Respondent’s prior disciplinary history includes: Verbal Reprimand, dated December 17, 2007, for failing to monitor students. Verbal Reprimand, dated January 19, 2009, for failing to submit student attendance on 39 occasions during the 2008- 2009 school year through January 6, 2009. Written Reprimand, dated January 20, 2009, for failing to follow three separate Memorandums of Instruction concerning posting student attendance and for failing to report student attendance on January 7, 2009. Individual Education Plans During the 2008-2009 school year, Respondent was the case manager responsible for drafting Individual Education Plans (“IEPs”) for several of his students. Under federal law, IEPs must be updated at least once each year. Failing to update an IEP by the time the prior IEP becomes out of date means such IEP is out of compliance. This jeopardizes ESE funding, which comes from state and federal sources. During the 2008-2009 school year, there was an ESE liaison (Cindy Lowery) at the School who routinely and timely reminded case managers, including Respondent, of their IEP responsibilities, important deadlines, and steps necessary to be taken by the case manager. At the beginning of the school year, Lowery explained the procedures to case managers, including Respondent. Respondent received numerous reminders prior to the expiration of each IEP for which he was responsible. The expectations relating to IEP completion were clear and known to case managers, including Respondent, at all relevant times. At all times during the 2008-2009 school year prior to his being placed on administrative leave on March 17, 2009, Respondent had the ability to complete in a timely manner each IEP for which he was responsible. He also had access to all materials and assistance necessary to timely complete each of the IEPs. During school year 2008-2009, Respondent was the case manager and responsible for the IEPs of students A.M. (due 11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed 2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due 2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009); B.B. (due 3/11/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009). Reporting Attendance Teachers are required to take classroom attendance each period and timely post that attendance into the School’s computer program that tracks attendance. This expectation is contained in the School’s staff handbook, which is developed and reviewed annually by a shared-decision making team, composed of administrators, teachers, and community members. Reporting attendance each period is a safety and security matter. Reporting attendance also assists with accountability for funding purposes. During the 2008-2009 school year prior to being placed on administrative leave on March 17, 2009, Respondent failed to report attendance in at least one period on: August 20, 21, 25, 26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30; October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12, 18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19, 24; and March 3, 4, 10, 13, and 16. In all but six of those dates, Respondent failed to report attendance for multiple periods. On October 20, 2008, November 24, 2008, and January 7, 2009, administrators at the School provided Respondent with Memorandums of Instruction reminding Respondent of the need to submit attendance electronically each period. FCAT Proctoring On March 10 and 11, 2009, the FCAT was administered at the School. Respondent was assigned to proctor students who were permitted testing accommodations. Some permitted accommodations included extended testing time and having proctors read questions. Testing of these students occurred in the School’s media center. Another ESE teacher, Aisha Holmes, was also assigned to proctor similar students. Proctors were instructed that they needed to sign-in and sign-out upon entering and leaving the media center; that they could not engage in personal reading; and that they needed to actively supervise the students at all times. A preponderance of evidence supports the finding that Respondent engaged in the following activities contrary to his duties as proctor: Over the two-day proctoring session, Respondent failed to sign-in and sign-out every time that he took a break. Respondent engaged in personal reading and other non-proctoring activities when he was required to be actively proctoring the FCAT. Respondent stood over student S.L.’s shoulder for a time period exceeding two minutes. While Respondent contends that he was trying to determine if S.L. had finished, S.L. had not finished. Respondent’s actions were intimidating to S.L. On the second testing day, Respondent fell asleep on a couch in the media center for a period of time when he should have been actively proctoring. Respondent snored, causing a disturbance to the students engaged in testing activities. While the length of time Respondent slept was in dispute, the evidence demonstrates that it was considerably longer than a brief moment as advanced by Respondent. On the second day of testing, a student spilled juice on that student’s reference sheet. Respondent placed the reference sheet in the microwave but did not monitor the drying process. The microwave scorched the reference sheet, resulting in a burnt smell invading the testing area and causing another disturbance to the students engaged in testing activities. Use of Video with No Learning Objective in Place In February 2009, Respondent showed the movie “Happy Feet” to his class. He concedes that he had no learning objective in mind in showing this video. Although Respondent explained that in his opinion, no learning could be accomplished that day due to the death of a co-teacher’s fiancé, Respondent conceded that he requested no assistance in addressing this situation despite such assistance being available to him. Lesson Plans Teachers are required to prepare lesson plans at least one week in advance. Teachers are also required to have the lesson plan on their desk and available for review. The lesson plan expectations are contained in the School’s staff handbook. The lesson plans are the guiding document for instruction, which requires teachers to give forethought as to the content of their lessons. It is used by teachers to focus their lessons, by administrators to ensure content aligns with teaching objectives, and by substitutes in the absence of the teacher. It is undisputed that the School’s administration repeatedly counseled Respondent to create and have lesson plans available. Respondent failed to have lesson plans completed and available for the week of October 6, November 17, and December 15, 2008, and January 5, January 20 and February 2, 2009. February 3, 2009 Weingarten Hearing On February 3, 2009, Bazenas and Respondent met in a formal, noticed meeting to discuss Respondent’s failure to complete IEPs for Students J.G. and U.S. That meeting also addressed Respondent’s continued failure to comply with school policy on maintaining lesson plans. It is undisputed that Respondent failed to timely complete the IEPs for students J.G. and U.S., and that he failed to comply with the lesson plan requirement. March 16, 2009 Weingarten Hearing On the afternoon of Monday, March 16, 2009, Bazenas and Respondent and others met in a formal, noticed meeting to discuss: (1) Respondent’s failure to complete IEPs for students N.C. and B.B. prior to their IEPs becoming out of compliance; (2) the FCAT proctoring matters; (3) use of the video “Happy Feet” with no learning objective; (4) continued failure to comply with the lesson plan expectation; (5) tardiness on March 9, and March 10, 2009; and (6) use of the girls’ restroom.1 It is undisputed that Respondent failed to complete the IEPs for students N.C. and B.B. in a timely manner, and that he used the video “Happy Feet” with no learning objective in place. During the meeting, Bazenas presented Respondent with the summary of Holmes’ observations of Respondent’s conduct while proctoring the FCAT. Respondent conceded that he was inattentive at times during FCAT proctoring and did fall asleep for some period of time during the FCAT, although he disputes it was for 45 minutes. March 17, 2009, Confrontation On the morning of Tuesday, March 17, 2009, Respondent entered Holmes’ classroom to “discuss” Holmes’ summary of her observations of Respondent during the FCAT. A student, whom Holmes was tutoring, was present in Holmes’ room at the time. Holmes was uncomfortable with Respondent’s insistence on discussing the FCAT matter at that time in front of the student. Holmes advised Respondent that she would talk to him later. Respondent, however, persisted in continuing his challenge to Holmes’ FCAT proctoring observations in front of the student. At that point, Bazenas entered Holmes’s room. Bazenas observed that the situation was “tense” and that Holmes was backed into a corner of the room. Bazenas also observed that the student that was present looked very uncomfortable. At that point, Bazenas, in a reasonable voice, requested that Respondent return to his own classroom to supervise his students. Respondent immediately became upset and began yelling at Bazenas, telling Bazenas not to interrupt him. Respondent approached him and pointed his finger in Bazenas’ face. At that time, Collins was in Brooks’ room. Collins heard shouting coming from the direction of Holmes’ room. Collins proceeded into the center office of the quad. She observed Respondent shouting at Bazenas that he was a “liar” and that Respondent would see Bazenas “in court.” Collins did not hear Bazenas raise his voice. Collins was fearful of Respondent; she had never seen Respondent act in that way. She also testified that Bazenas looked fearful of Respondent. Respondent then proceeded into his classroom and Bazenas followed Respondent into the classroom. He put himself between Respondent and his students, permitting Collins to remove the students from Respondent’s classroom, taking them into Brooks’ classroom. Respondent continued with his emotional outburst during this time. When Bazenas requested that Respondent leave campus immediately, Respondent threatened Bazenas. Bazenas subjectively believed that Respondent’s agitated behavior and his statement to be a threat of violence. Respondent also directed inappropriate comments to his students about Bazenas during his outburst. As Collins brought Respondent’s students into Brooks’ classroom, Collins was shaking and looked very fearful. After all of Respondent’s students were in Brooks’ classroom, Brooks locked the doors. Locking the doors is an unusual occurrence; however, Respondent did leave campus voluntarily. Respondent was immediately placed on administrative leave. Shortly thereafter, a police officer went to Respondent’s house to advise Respondent to stay away from campus. Respondent complied with the request. Respondent’s outburst on March 17, 2009, constituted a real and immediate threat to the School administration, teachers and students and was a flagrant violation of school policies and the State Principles of Professional Conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating the employment of Respondent from the date Respondent was placed on unpaid leave of absence. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
The Issue The issue presented is whether Petitioner should terminate Respondent's professional service contract for his failure to correct his performance deficiencies within his 90-calendar-day probation period.
Findings Of Fact At all times material hereto, Respondent, Jose L. Rojas, has been employed by The School Board of Miami-Dade County, Florida, as a teacher pursuant to a professional service contract. During the 2004-2005 school year, he taught regular sixth-grade math classes at Redland Middle School. Teachers employed by the School Board, including Respondent, are evaluated pursuant to the Professional Assessment and Comprehensive Evaluation System, known as PACES. PACES was collectively bargained with the teachers' union and approved by the Florida Department of Education in 2001 as being in statutory compliance for teacher evaluations in Petitioner's school district. PACES focuses on student learning and teacher professional development, as well as on teaching behaviors. In PACES, there are seven domains: six are to be observed during a classroom observation, and the seventh domain deals with professional responsibilities demonstrated outside the classroom observation. The domains reflect the required statutory competencies of Section 1012.34, Florida Statutes. Each domain has teaching and learning components, and each component has indicators, 44 of which are required to meet standards under PACES. The 44 indicators are fundamental units of observation that are used to make professional judgments about the quality of learning and teaching. They represent the basic level of teaching to be demonstrated by all teachers in Petitioner's school district, i.e., the minimum requirements. They are the objective standards described in the PACES manual. Teachers have PACES manuals and access to the PACES Internet website. The standards are also repeated in any professional improvement plan, known as a PIP. It takes only one unacceptable indicator for a domain to be rated below performance standards. One below-standard domain indicates a teacher's non-compliance with statutorily- required competencies. The Florida Comprehensive Assessment Test (FCAT) measures student performance on the State's objectives for Florida's required curriculum, the Sunshine State Standards. While Petitioner's school district, as a whole, must utilize the FCAT data and indicators of student performance, there is no similar requirement for evaluating teachers by the results of the performance of their students on the FCAT (or other local assessments for subject matters not covered by the FCAT). Individual evaluations of teachers, however, must address student performance. PACES addresses student performance in every domain. What is assessed is whether the teacher is monitoring and gauging student progress in the classroom, making sure that the students are mastering the required curriculum. Teachers are expected to use their students' FCAT scores from the prior year for planning, pursuant to PACES domain I, to meet the students' deficiencies. Redland utilizes FCAT results in this manner. Further, a teacher's teaching strategies and activities are required to address FCAT expectations. At the beginning of the school year, teachers at Redland receive copies of the scope and sequence for what the students are to learn during the school year. The teachers develop the curriculum and timelines for meeting benchmarks to be covered during the school year. PACES domain II, as another example, deals with the teacher's management of the learning environment. If time is not managed and is, instead, wasted, the students' achievement of the Sunshine State Standards will be impacted, which will affect FCAT scores. PACES domain IV, as yet another example, requires teachers to informally assess the students' engagement in learning to assess their performance to ascertain whether the students are mastering the Sunshine State Standards. All of the administrators who were PACES observers in this case have had extensive training in the standards to be observed and evaluated in teacher performance and student learning and are, therefore, authorized to perform PACES observations, which are based upon what the observer objectively observes while in the classroom. The performance probation process in Petitioner's school district, like the PACES teacher evaluation process, was collectively bargained with the teachers' union. The process is as follows: if there is an observation conducted by an administrator that indicates a teacher is performing below standards, it becomes the "initial observation not of record." The administrator meets with the teacher, goes over the observation, makes suggestions for improvement, and notifies the teacher that he or she will be observed again in approximately three weeks. The administrator offers the teacher the assistance of a professional growth team (PGT). Use of a PGT is voluntary on the part of the teacher at this point. The PGT is part of the professional development aspect of PACES. PGTs are composed of experienced peer teachers who are extensively trained in PACES and are authorized to give support and assistance to teachers to improve classroom instruction. The same administrator who conducted the "initial observation not of record" must conduct the next observation, the "kick-off observation," which is the first observation of record in that school year. If this observation reveals below- standards performance, a conference-for-the-record (CFR) is held. A PGT and a PIP are provided to the teacher. The performance probation period begins the day after a PIP is given to the teacher. The teachers' union and Petitioner then mutually agree on the calendar for counting the 90 days. There must be two official observations during the performance probation period. The teacher must meet all 44 required indicators in order to meet performance standards during the teacher's performance probation. If any indicators are below performance standards, PIPs are again given. There are four levels of PIP activities, which are progressively more complex. A "confirmatory observation" takes place after the 90th day to determine whether the teacher has corrected his or her deficiencies. The "confirmatory observation" must be completed within 14 days after the conclusion of the performance probation, and the evaluator must forward a recommendation to the Superintendent of Schools. Within 14 days of receiving the evaluator's recommendation, the Superintendent must notify the teacher whether he will recommend to the school board that the teacher's employment be continued or terminated. It is not sufficient for the teacher to improve on only some of the deficient indicators. It has been the custom and practice under the collective bargaining agreement that remediation occurs only when the teacher meets standards in all of the required indicators. Respondent's initial observation was conducted by Assistant Principal Fahringer on September 23, 2004. Respondent was teaching a class of 20-23 students. Respondent told the students to take out their agenda books which contained their homework. As Respondent went around the classroom checking each student's homework, the remainder of the students just sat and talked, waiting for a lesson to begin. They were not working on math. Out of the two-hour block of class time, the class was off-task about 25 percent of the time. Respondent failed to meet performance standards in components and indicators of domain II, managing the learning environment, and domain IV, enhancing and enabling learning. Pursuant to the agreed-upon procedures, the observation became "not of record." Assistant Principal Fahringer met with Respondent September 28, 2004, went over the evaluation, and explained why Respondent had not met performance standards. Fahringer gave Respondent suggestions for improvement and advised him that she would return to do a follow-up observation. She offered Respondent a PGT, which he accepted. On October 19, 2004, Fahringer performed Respondent's first observation of record, the "kick-off observation." Respondent was giving a lesson on fractions, decimals, and percentages to 32 students using cups of M&Ms and a chart. Respondent told the students to divide into groups of four. There followed much noise and confusion. As Respondent went from group to group, he did not monitor the other seven groups. Students threw M&Ms and paper wads. Respondent did not meet performance standards in components and indicators of domains II and IV. He did not meet standards in domain II because the learning did not begin promptly. After a five-minute delay, another five minutes were wasted while Respondent counted out the M&Ms. Ten minutes wasted at the beginning of the class is a significant amount of time since time spent on-task improves achievement. There were delays in the organizational and teaching/learning activities. When Respondent told the students to divide into groups of four, some students appeared uncertain as to what group they were in and, instead, milled around talking noisily. Some students remained off-task throughout the lesson. Respondent did not address the off-task behavior because he did not appear to even notice it while he focused on one group at a time. Students came to Respondent with their agenda books, "visiting" other students and talking with them on the way. Eight students were distracted, noisy, and off-task, but Respondent failed to redirect them. Respondent's expectations about acceptable behavior had apparently not been made clear to the students. Although he told them to raise their hands and not to talk, they continued to talk noisily to each other for 50 minutes. Respondent failed to effectively monitor the class throughout the lesson. When he was with one group, he did not use management techniques to diffuse the unacceptable off-task behavior of the other groups. The remaining seven groups did not work (no learning took place) while they waited for Respondent to come to them. Respondent did not meet standards in domain IV because he did not introduce the purpose of the lesson. The students were told how to count the M&Ms and complete a chart, but there was no explanation as to what they were to learn. The students did not understand that they were learning the relationship among fractions, decimals, and percentages. Respondent did not give clear and complete directions. He told the students that they were going to "integrate" decimals, percents, and fractions, a meaningless word choice. The directions did not include any explanation of content or integration of mathematical concepts. Respondent did not demonstrate accurate content knowledge. He gave inaccurate and unclear information to the students. He counted the various colored M&Ms and put the numbers on the chart. On the chart, he explained that the decimals--.35, .10, .25, .17, .03, and .71--equal one, when in fact they equal 1.61. Also on the chart, Respondent explained that the percentages--35%, 10%, 25%, 17%, 3%, and 71%--equal 100%, when in fact they equal 161%. The students accepted the inaccurate information. On the line of the chart indicating the fractions, Respondent reduced some of the fractions leaving different denominators, which made the addition of those fractions difficult. On October 29, 2004, Principal DePriest and Assistant Principal Fahringer held a CFR with Respondent to address Respondent's sub-standard performance, his performance probation, recommendations for improving the specific areas of his unsatisfactory performance, and Respondent's future employment status with Petitioner. Respondent's input was sought, and he was formally assigned a PGT. Respondent was given a copy of the summary of the CFR and a PIP on November 1, 2004. The PIP required him to read and summarize pertinent sections from the PACES manual by November 22, 2004. Respondent's performance probation period began November 2, 2004, the day after he received the PIP. He was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed time. Respondent's PGT provided assistance to him throughout his performance probation. Respondent failed to complete his PIP activities by the November 22 deadline. On December 2 he was given another 24 hours to comply, which he did. On November 24, 2004, Respondent was formally observed in his classroom by Principal DePriest. Respondent was presenting a lesson to 19 students, but the classroom was too chaotic for learning to take place. Respondent again did not meet performance standards in domain II. Learning did not begin promptly. Respondent wasted 12 minutes reprimanding students, taking roll, and answering his personal cell phone while the students were not engaged in learning. There were also inefficient delays in organizational and teaching/learning activities. The students went to the board, one by one, to solve math problems. Respondent spent approximately five minutes with each student at the board while the rest of the class became noisy, walked around, or slept. Respondent failed to monitor off-task behavior or the behavior of the entire class. As Respondent focused on the one student at the board, the other students were off-task for up to five minutes at a time throughout the lesson, talking, putting their heads down, tapping their pencils, and making inappropriate comments such as "Can someone choke me?", "Can someone kill me?", and "Can I die now?". One student simply played with her hair for six minutes. Essentially, everyone was talking, and no one was listening to Respondent. Yet, Respondent did nothing to redirect the students. He did not appear to have classroom conduct rules in place. Thus, Respondent failed to make his expectations about behavior clear to the students. He instructed them not to talk without raising their hands. Nevertheless, eight of the students talked out-of-turn for 20 minutes without raising their hands. DePriest met with Respondent on December 2, 2004, to review the observation. DePriest provided assistance through a PIP to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes on the PACES Internet website. Respondent was to maintain a log and discuss techniques and strategies with DePriest. Respondent's deadline to complete his PIP was January 6, 2005. On January 10, 2005, Respondent was formally observed by Assistant Principal Janice Farrell. Respondent was presenting a lesson on perimeters and surface areas to 22 students. The lesson was disorganized, and there was an "air of confusion" in the class. Many students were being unruly and exhibiting off-task behavior. Therefore, not much learning was taking place. Respondent still did not meet performance standards in domains II and IV that had been previously identified. He also failed to meet performance standards in components and indicators not identified in the kick-off observation of October 19, 2004, and, therefore, not the subject of Respondent's 90-day performance probation or this Recommended Order. Respondent caused inefficient delays in organizational and teaching/learning activities. The learners were instructed to complete a "bellringer" activity, i.e., an activity that is used at the beginning of the class period to engage the students in learning as soon as they enter the room. Although they were instructed to complete it, eight of the 22 students did not receive a bellringer worksheet. Students were asking for materials and attempting the activity unsuccessfully on their own. Respondent appeared unaware of the problem Respondent failed to monitor off-task behavior and disengagement from learning throughout the lesson. One student continuously called out Respondent's name, louder and louder, for five minutes. Students talked and copied each other's answers. While a student walked around stamping the other students' agenda books, they became off-task. A group of three students at a back table remained off-task throughout the lesson, talking, copying each other's answers, and throwing papers. Respondent did not redirect any of these students until the last five minutes of the class. Respondent failed to monitor the whole class effectively. When he went to the back of the room to address a tardy student without a pass, he turned his back on the other 21 students who changed seats, threw papers at each other, and hit each other with rulers. Respondent did nothing to redirect his students. He failed to make the purpose or importance of the learning tasks clear to the students. He did not give a rationale for the bellringer activity, which consisted of answering questions about perimeters and areas of geometric shapes. He also gave the students inaccurate information. He incorrectly calculated the perimeter of a square as 3+3+3+3=15. DePriest and Farrell met with Respondent to review the observation. Farrell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP to help Respondent correct his deficiencies. Respondent's PIP required him to complete self- assessment activities through the PACES website. He was to watch vignettes provided by the website in order to understand what the PACES indicators required of him. Respondent's deadline to complete his PIP was February 11, 2005. Because Respondent's second observation within the performance probation period was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether Respondent had corrected his deficiencies. Principal DePriest performed that observation on February 22, 2005. On that day, management of the learning environment and classroom discipline were non-existent. Respondent was presenting a lesson on geometric shapes to 18 students. While he did have instructions written on the board, there were still the same kinds of delays seen previously, and the students were still not engaged in learning. Overall, the class environment was chaotic. One-third to one- half of the class was off-task at any given time. The class was completely disorganized; the students were not engaged; the students did not pay any attention to Respondent, and very little learning took place. Each time supplies were distributed, commotion resulted. When colored paper was distributed so that the students could trace the shapes, they got into arguments over the different colors, negotiated the trading of colors, and asked Respondent for different colors. When rulers were passed out, the students were not instructed to use them to draw the geometric shapes. Some had already drawn the shapes freehand. Others were dueling with the rulers. Some tore the shapes, rather than waiting until they received scissors. Respondent again did not meet performance standards in domain II as identified in the kick-off observation. Learning did not begin promptly. Respondent spent 10-11 minutes taking roll and reprimanding tardy students. There were inefficient delays in organizational and teaching/learning activities. Respondent allowed students to talk and distract others. Students were not paying attention. Respondent accepted a phone call and made a phone call during the class. He failed to monitor the off-task behavior caused by the manner in which supplies were distributed and failed to redirect the students, including while they argued about paper, scissors, and rulers. DePriest notified Respondent on February 23, 2005, that Respondent had not satisfactorily corrected noted performance deficiencies during his performance probation period and that DePriest would recommend to the Superintendent of Schools that Respondent's employment be terminated. On that same day, DePriest transmitted such a memorandum. On March 9, the Superintendent notified Respondent that the Superintendent would recommend that the School Board terminate Respondent's employment contract for Respondent's failure to correct his noted performance deficiencies during his performance probation. Petitioner has met all procedural requirements and statutory time frames. The FCAT was administered to Florida students in late- February to early-March, 2005. Petitioner received Respondent's students' scores on May 17 and the district-wide FCAT results on May 19, 2005, the day before the final hearing in this cause. The district as a whole showed "tremendous" progress over the prior year. Even though Redland is a "low-performing" school, it likewise showed progress over the prior year in reading and mathematics. Respondent's students, however, failed to follow this trend. Petitioner does not use a teacher's current students' FCAT scores in assessing a teacher's performance because the scores are released too late in the school year. PACES, however, addresses student performance, as statutorily required. Where a teacher's students are observed as being noisy throughout lessons, being confused, not paying attention, and being given erroneous lesson content, there is a clear lack of student performance, and they are not engaged in learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent failed to correct his performance deficiencies and terminating Respondent's professional service contract, effective April 13, 2005. DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2005. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Rudolph F. Crew, Ed.D, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the application of policy and practice by: establishing routines and procedures for the use of materials and the physical movement of students. formulating appropriate standards for student behavior identifying inappropriate behavior and employing appropriate techniques for correction. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2000.
