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 issue for determination is whether Respondent's professional service contract should be renewed as provided in Subsection 231.36(3)(e), Florida Statutes. This requires a determination of whether the Petitioner provided sufficient assistance and in-service training opportunities and evaluated Respondent periodically to apprise him of his progress, and whether Respondent corrected certain noted performance deficiencies.
Findings Of Fact At the time that he was recommended for non-renewal, Respondent, James A. Conner, had been employed by the School Board of Seminole County (Board) as a graphic arts teacher at Sanford Middle School for approximately seventeen years. Daniel Pelham has been principal at Sanford Middle School for the past twenty-three years. On March 26, 1991, Pelham advised Conner, in writing, that he was being recommended for return to annual contract status for the 1991-92 contract year, based on unsatisfactory performance in the following areas: Deficient Classroom Management Failure to maintain established procedures. Failure to maintain appropriate and consistent disciplinary procedures. Failure to use clearly defined classroom procedures. Failure to utilize time efficiently. Deficient Teaching Skills Failure to promote effective classroom interaction. Failure to exhibit rapport and understanding with students. (Petitioner's Exhibit #4) The deficiencies noted by Pelham had been developing over a period of approximately four or five years and were pointed out on prior evaluation forms. In particular, Pelham was concerned that there were an inordinate number of student discipline referrals being made by Conner. Pelham also personally observed problems in classroom management in visits he made to Conner's classes. Conner's classes in the vocational program were typically smaller than those in the academic programs. Over a school day of five periods, he had a total of sixty to seventy-five students, and some of his classes contained only nine or ten students. As a result of proceedings not relevant to this case, the parties entered a stipulation that the March 26, 1991 recommendation would be considered a notice of unsatisfactory performance required to terminate a professional service contract pursuant to Section 231.36(3)(e), Florida Statutes (1991). The effect of the stipulation was to provide Conner with an opportunity to remedy his deficiencies as provided in a new law governing employment rights of classroom teachers. By the time Pelham's recommendation was made, he felt that Conner had the capacity to improve, but the principal was not optimistic that the improvements would be made. As required by law, an assistance plan was developed to assist James Conner in correcting the deficiencies provided in the notice described above. Daniel Pelham assigned Roger Gardner, his assistant principal, to be a mentor to Conner; and he removed Gardner from any supervisory role in an attempt to make the relationship more helpful. The assistance team was comprised of Dan Pelham; Roger Gardner; John Reichert, the Board's Director of Personnel; Cliff Duncan, Director of Staff Development; and Betty Hogle, Director of Vocational Education. The plan was provided to James Conner in September 1991. Helene Samango was Conner's representative from the Seminole Education Association, the teachers union. She elicited the assistance of Linda Cronin- Jones, Ph.D., an associate professor of instruction and curriculum at the University of Florida College of Education, to review the performance assistance plan. Dr. Cronin-Jones provided a critique of the plan, with suggestions that were, in turn, provided to Mr. Reichert the second week of December 1991. Dr. Cronin-Jones' suggestions were incorporated in the plan at the next meeting of the assistance team on January 13, 1992. The additions to the plan included a peer teacher selected by Mr. Conner, in addition to the one already identified in the plan, and included videotaping Conner's class sessions to be used as a tool for Conner and his peers to critique his work and to make suggestions for further improvement. The content of the assessment documents used to evaluate Conner's performance was established by statute. The assessment plan itself was developed four or five years ago by a committee of school board staff, including teachers, principals and union representatives. The plan has been approved by the State Department of Education every year thereafter. The performance assistance plan developed for James Conner was adequate and appropriate to address the specific deficiencies previously noted in his performance. He took advantage of the required activities, including review of in-service training material. He was not, however, responsive to the guidance attempts by Roger Gardner, whose task, having known Conner for many years, was to help him with specific strategies to reach the goals set up in the plan. For example, Gardner gave Conner a few articles to read that supported some of the things he was being asked to do. The articles related to specific problems of middle school children and ways of dealing with their discipline needs. Conner was to respond back to Gardner after reading the articles. He apparently read them, but did not respond as asked. Another assignment to Conner was to draft his classroom management plan. He and Gardner met on preliminary drafts several times, but it was not finally completed until December 19, 1991. The meetings were scheduled by Gardner, and Conner simply did not take the initiative that would have reflected an effort to cooperate. James Conner was observed or formally assessed on several occasions over the remedial year. Bettie Hogle, Director of Vocational and Technical Education for the School Board, observed him from the beginning of the first period until 10:35 a.m. on October 28, 1991. She noted the following: There was no clear focus on the day's learning activities at the beginning of class. Student behavior was poor. One student was sent to the office for discipline at the start of class. I was not sure why he was singled out when others were misbehaving as well. Equipment and materials were stacked around the lab. This cluttered atmosphere is not conducive to student learning. On the positive side, Mr. Conner exhibited good questioning techniques in teaching the lesson. He complimented the students on the good behavior they demonstrated in groups earlier in the week. After students began working on projects, he circulated around the room and provided individual assistance. (Petitioner's Exhibit #11) Daniel Pelham observed Conner's seventh grade class for thirty-five minutes on November 11, 1991. There were five students in the class. The assessment form notes unsatisfactory ratings in six areas of classroom management and teaching skills. Two students were observed talking during most of the observation, without intervention by the teacher. The form also noted "not much change here" under the category, "Exhibits rapport and understanding with students", with the comment, "very high discipline referral. To date 11/11, total of 46". (Petitioner's Exhibit #12) On December 9, 1991, Pelham sent Conner a memorandum regarding the continued clutter in his classroom, storage room and office, and directed him to remove the items not in use in his program and to get the items off the floors. A follow-up memorandum was given to Conner on January 22, 1992, noting that the papers and boxes were still scattered on the floor of his office and storage room. The memorandum also noted a positive improvement in classroom management observed on January 9, 1992. The nine students observed that period were on task and behaved. Pelham's next assessment is dated March 24, 1992 and reflects a thirty-five minute observation of Conner's seventh grade graphic arts class on March 18, 1992. There were ten students present. Five areas under classroom management and teaching skills were found unsatisfactory. No significant change in management style was found. Students spent a lot of time just sitting. One student completed his project and sat for 30 minutes. The students were told "just follow directions". (Petitioner's Exhibit #8) Pelham's annual assessment of Conner is dated April 24, 1992 and finds him unsatisfactory in these four areas under classroom management and teaching skills: "Uses clearly defined classroom procedures"; "Disciplinary procedures established and used"; "Promotes effective classroom interaction"; and "Exhibits rapport and understanding with students". Four or more unsatisfactory ratings constitute an unsatisfactory evaluation according to the instructional personnel plan. (Petitioner's Exhibit #6) The areas found unsatisfactory are critical to the effective functioning of a teacher. The deficiencies noted in the above-described assessments or evaluations are evident in the videotapes of Conner's classes, recorded in December 1991 and March 1992. Those sessions are typical examples of Conner's performance at the time that they were taped; they reflect the methodologies and strategies he was using and attempting to implement from the assistance plan. The December session shows constant talking by the students, with Conner lecturing and attempting to demonstrate over the low din. The class was small, approximately ten students, but they were notably disengaged, except during brief periods when the equipment was plotting designs. Conner ignored the talking and forged on with the lesson. The March sessions were also small classes and the students were not as disruptive. Explanations and demonstrations of equipment were made with the teacher's back to the students. Again, the students were primarily disengaged, some with their heads on the tables. Several times, Conner urged them, "you might want to write this down", but not the first student picked up a pencil, and some seemed not to have pencils or materials on their tables. A child with his hand up was not recognized for an extended period and eventually Conner's response to his question was a flippant, "Because it's there". There was some attempt to engage the students in discussion about what was learned in other classes or about trips to Epcot or Busch Gardens, and there was some attempt to compliment students with, "Congratulations and a warm fuzzy to the stars who made 100"; but in spite of the size of the class, there was very little individual interaction. Students were rarely addressed by name or called to respond individually. For the most part, the students appeared unchallenged or simply bored. The Board's expert witness described the classroom style as lack of "with-it-ness". Although Conner was friendly or kind, class time was wasted and the students' education was not advanced. Over the 1991-92 school year, James Conner issued approximately 110 student discipline referrals, exhibiting some improvement over prior years, but still an excessive amount based on the number of his students, and reflective of a failure of classroom management and poor rapport with the students. His explanation that his students were particularly disruptive and he had to be strict to keep them from hurting themselves on the dangerous equipment, is not substantiated by the observations of the principal or by the compelling evidence of the videotaped sessions. The classroom unrest was more apparently the painful consequence of student boredom and failure of the teacher to engage his enviably small classes in the subject matter. Conner's theory that his principal gave up on him too early and failed to provide the equipment he needed, or had a personality conflict, was not developed with competent, credible evidence. The assistance plan, the suggestions and guidance offered by Roger Gardner, and the peer assistance of two outstanding teachers were appropriate and adequate. Daniel Pelham did not recommend Conner's transfer to another school because he properly wanted to avoid passing on a problem to someone else. James Conner did improve his performance over the remedial year. Six unsatisfactory charges were reduced to four. It is impossible to determine whether more improvement would have been made with more time. He was, however, given the time required by law, and was given the assistance required to make improvements. The principal's assessment was valid and the superintendent's recommendation that he not be issued a new professional service contract was timely and is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Seminole County enter its Final Order denying renewal of James Conner's professional service contract. RECOMMENDED this 26th day of January, 1993, in Tallahassee, Florida. MARY CLARK 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 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3012 The following constitute rulings made on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraph 2. Adopted substantially in paragraph 1. Respondent testified that he was employed 17 years (transcript, p.304). Included in Preliminary Statement. Adopted in paragraph 17. Included in Preliminary Statement. Adopted in substance in paragraph 2. Adopted in paragraph 3. Rejected as unnecessary. 9-10. Adopted in paragraph 6. Adopted in paragraph 25. Rejected as unnecessary. (Second numbered paragraph 12) Adopted in paragraph 7. Adopted in paragraph 7. Adopted in paragraph 6. Adopted in substance in paragraph 10. Adopted in paragraphs 17 and 26. Adopted in paragraph 25. Rejected as unnecessary. Adopted in paragraph 17. Adopted in paragraph 9. Adopted in substance in paragraphs 12-16. Rejected as substantially unsupported by the evidence. He did make some effort and was moderately, but insufficiently, successful. Adopted in paragraph 18. Rejected as unnecessary. Respondent's Proposed Findings of Fact Adopted in substance in paragraph 1. Adopted in part in paragraph 2. The proposed finding of personality conflict is rejected as unsubstantiated by competent, credible evidence. Adopted in paragraphs 2 and 4. Adopted in part in paragraph 5. The ultimate conclusion that he had "given up" is rejected as an overstatement of the substance of Pelham's testimony. 5-7. Rejected as unnecessary. Adopted in substantive part in paragraph 25. Adopted in paragraph 6. 10-12. Adopted in substance in paragraph 7. Adopted in paragraph 8. Rejected as contrary to the weight of the evidence. 15-17. Substantially rejected as contrary to the greater weight of evidence. 18-22. Rejected as unnecessary. The testimony of the peer teachers neither supports nor rejects the position of Respondent. It is credible, but essentially neutral. Rejected as contrary to the greater weight of evidence. The referrals played some part in the unsatisfactory assessments, but so also did Pelham's classroom observations. Rejected as unnecessary. The basic premise is accepted, but this was not the reason Respondent had problems with referrals. Rejected as contrary to the greater weight of evidence. 26-27. Rejected as unnecessary. Adopted in substance in paragraph 18. 29-31. Rejected as contrary to the greater weight of evidence. Both parties' experts were impressive and credible. In her assessment of Respondent's performance, Dr. Cronin- Jones understandably concentrated on the positive aspects, which aspects were nonetheless outweighed by the negative overall lack of effective connection between teacher and his students. The marked efforts to "relate" are rote, and in some cases (the trips), detract from the learning process. COPIES FURNISHED: Ned N. Julian, Jr., Esquire STENSTROM, MCINTOSH, ET AL. Post Office Box 4848 Sanford, Florida 32772-4848 Thomas W. Brooks, Esquire MEYER AND BROOKS, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Robert W. Hughes, Superintendent Seminole County School Board 1211 Mellonville Avenue Sanford, Florida 32771
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent John H. Hopkins, Jr., has been employed with the Pinellas County school system since 1961. He has taught in elementary, junior high, middle and high schools. In addition to sick leave, a teacher employed with the Pinellas County school system is entitled to the following days of leave without loss of pay: two days per year for emergency or extenuating circumstances and two days per year for personal leave. These days are charged to the sick leave allowance of the teacher. In the 1976-77 school year, respondent was a science teacher at Disston Middle School. When a teacher has unused days which can be charged to sick leave, it is the established practice at Disston for the teacher to notify the assistant principal in advance when he intends to be absent and to complete the paperwork when he returns to duty. If a teacher does not have days accrued which can be charged to sick leave, he must take leave without pay. Leaves of absence without pay must be approved in advance by the county personnel office. At approximately 8:30 p.m. on January 17, 1977, a Monday, respondent telephoned Robert Twitty, the assistant principal at Disston and told him he would not be at school for the rest of the week. Mr. Twitty asked for the reason, and respondent informed him that he was going to Washington, D.C. for President Carter's inauguration. Twitty told respondent to call Mr. Tom Zachary, Disston's principal, and notify him of respondent's plans. Respondent did attempt to call Mr. Zachary at his home, but Zachary was out. When Zachary got home, he returned respondent's call, but was unable to reach him. On January 17, 1977, respondent, had one and one-half days remaining which could be charged to sick leave. Respondent did not return to school that week. On January 21, 1977, a Friday, the Pinellas County schools were closed due to cold weather. This decision to close the schools was not made by the Superintendent until approximately 9:30 p.m. on January 20, 1977. On Sunday evening, January 23, 1977, respondent again called Mr. Twitty at home and advised him that he would not be returning to duty at Disston on Monday because he was going to the county office to resolve some problems. Respondent telephoned Mr. John Hudson, the assistant superintendent for personnel, on Monday, January 24, 1977, but Hudson was not in. On Tuesday, January 25th, respondent had a doctor's appointment which took about two hours. He did not report to work on this day or for the rest of the school week. On Wednesday, January 26th, respondent spoke with Hudson on the telephone. While Hudson could not recall the substance of this conversation, It was respondent's recollection that Hudson told respondent to report back to Disston on Monday, January 31st. Dr. Douglas McBriarty, petitioner's director of instructional personnel, telephoned respondent on January 27, 1977, and told respondent that he had spoken to Superintendent Sakkis and, by his direction, respondent was to report to work the following morning. Respondent did not report to Disston on January 28th. At the hearing, respondent had no recollection of having talked to Dr. McBriarty on January 27, 1977. On the morning of January 31, 1977, respondent reported to work at Disston. He was called into Principal Zachary's office and was told that Dr. McBriarty would be coming out to the school later to discuss respondent's absence from school. Respondent then went up to his classroom. Assistant principal Twitty came into respondent's classroom and told him that Zachary wanted to see his lesson plans. Feeling that he was being harassed by Zachary, respondent told Twitty that he was leaving school and going to Clearwater to the county offices. As respondent was walking out to his car, Mr. Zachary came out to the parking lot and told respondent not to leave because Dr. McBriarty was coming. Respondent left the school and did not return. By letter dated February 2, 1977, to respondent from Superintendent Sakkis, respondent was notified that he was suspended from his duties at Disston without pay beginning Monday, January 24, 1977, and that it would be recommended to the School Board that he be dismissed. This action was based upon charges that respondent had been guilty of being absent without leave, misconduct in office, gross insubordination and willful neglect of duty. These charges were supplemented and amended by pleadings dated May 25, 1977, and June 27, 1977. Respondent had previously been suspended by the School Board without pay from March 4 through March 19, 1976. This action was based upon misconduct in office in that respondent had been absent without proper authority. (Exhibit No. 2) Prior to being transferred to Disston Middle School in January of 1975,. respondent taught biology and general science courses for five years at Dixie Hollins High School. Kenneth Watson, then principal of Dixie Hollins, had numerous problems with and complaints about respondent. These involved the grading and disciplining of students in his classes, the quality of his teaching, refusal to admit to his class a student who had been given an admission slip by the dean, the school's receipt of telephone calls and messages for respondent unrelated to his teaching assignments and respondent's relationship with his students. Although respondent was the first black teacher at Dixie Hollins, Principal Watson did not conceive respondent's problems to be of a racial nature. He felt that respondent's difficulty was the manner in which he handled students and presented materials to them. Dr. McBriarty observed respondent's classes at Dixie Hollins on three or four occasions and found that respondent was not able to communicate with students and that there was not a satisfactory teaching relationship between respondent and his students. Feeling that respondent was no longer effective at Dixie Hollins and in order to allow him an opportunity to improve his performance, it was determined by respondent's superiors that he should be transferred to Disston Middle School in January of 1975. This was to be a temporary transfer until a position was available in another high school. Prior to his transfer to Disston, respondent ordered from Westinghouse Learning Corporation a biology course instructor's kit for a 30-day on-approval examination. The invoice was addressed to respondent at Dixie Hollins High School, and the total amount due if the materials were not returned within 30 days was $177.25. The merchandise was ordered by respondent without a prior purchase order and was not returned within the 30-day period. When the bill from Westinghouse came to the attention of the school, which was after respondent had been transferred to Disston, inquiries were made. No one seemed to know where the kit was. The materials were finally returned to Westinghouse some months later and the charge was cancelled from the School Board's account. There was no evidence that respondent ever personally requested the school or the county to pay for this material. Although respondent was dissatisfied with being assigned to teach in a middle school in lieu of a high school, his first semester's performance at Disston Middle School was without serious criticism and his principal's appraisal ranged from good to excellent. His problems began when he was reassigned to Disston for the 1975/76 school year, and intensified during the 1976/77 school year. On the "instructional appraisal and improvement form for 1975/76, Principal Tom Zachary rated respondent as unsatisfactory in the areas of classroom management, preparation and organization, and attitude and growth. Zachary urged respondent to take part in middle school certification. Respondent was again assigned to Disston for the 1976/77 school year, although he had requested a transfer to a high school. Due to the poor evaluation for the previous year, in August of 1976, Principal Zachary prepared and discussed with respondent a list of objectives and directives to help improve respondent's instructional abilities and his evaluation for 1976/77. (Exhibits 12 and 13) During the first semester of the 1976/77 school year, several of respondent's superiors visited his classroom. Principal Zachary observed respondent's classes on several consecutive days in November of 1976. During his first days' observation, the students were assigned to copy materials from the blackboard. When he visited the class the following day, no reference was made by respondent to the blackboard material. Zachary found the students to be inattentive to respondent with respondent providing no signs of direction, no continuity and no teaching techniques. In Zachary's opinion, no learning was taking place and respondent's classes were completely disorganized. Area assistant superintendent Lee Benjamin observed three of respondent's classes on December 14, 1976. While he found the second period class, a class of higher ability, to be satisfactory, the first and third period classes were observed to be chaotic with no real learning or discipline occurring. Mr. Benjamin felt that the students did not understand what the assignment was due to the unclear nature of respondent's instructions. It was Benjamin's opinion that respondent had great difficulty with teaching and discipline and therefore was not effective. In early January of 1977, science supervisor William Beggs visited three of respondent's classes. While he found the second period class to have some degree of order and direction, the first and third period classes were observed to be highly disorganized. The students did not appear to understand what they were supposed to accomplish and respondent was not adhering to his lesson plans. Upon a review of respondent's lesson plans, Beggs did not feel that respondent was covering the subject matters expected of a seventh grade life science course. In late November of 1976, respondent was involved with the TORC (teacher renewal) program. Dr. Shelby Ridel, a resource teacher for petitioner, observed respondent's classes to be utterly chaotic, with no pattern or continuity in the tasks to be performed. The students were confused by the assignments given them, and respondent would not answer their questions. He often sent students out to the hall for disciplinary reasons. While respondent appeared cooperative with and receptive to the changes suggested by Dr. Ridel, she saw no real improvement in his classes over the several weeks she worked with respondent. She felt that respondent's greatest problem was classroom management. Assistant Principal Twitty, who was responsible for the discipline of Disston students, experienced more than usual discipline problems with respondent's classes. Respondent was told on numerous occasions not to put students out in the hall for disciplinary reasons. Nevertheless, he continued to do so. Such action not only violated school policy; it also was disruptive to teachers in nearby classrooms. Along with several other teachers, respondent was assigned to an interdisciplinary team to work with students and their parents. As a part of his responsibilities, he was to prepare the science section of a newsletter. He often failed to attend the team meetings and, on at least one occasion, he failed to prepare his section of the newsletter. Prior to his departure from Disston in January of 1977, respondent had checked out a tape recorder and several books from the school library. He had also borrowed from Dr. Ridel a seventh grade science curriculum guide. The tape recorder was returned by respondent in April of 1977, and the other items were not returned until June or July, 1977. Respondent's explanation for this delay was that no one had requested the return of these materials and that he did not want to go back to Disston after his suspension. Respondent admitted that his classes gave the appearance of being chaotic and disorganized. It was his explanation that he utilized an individual, systems approach to teach his students and that his superiors did not understand or approve of this teaching technique. He further explained the adverse reaction by his superiors to his classroom techniques by emphasizing the lack of teaching materials and equipment made available to him at Disston, his inexperience in teaching sixth and seventh grade students and his desire to return to high school teaching.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that respondent's teaching contract be cancelled and that he be dismissed as an employee of the Pinellas County school system. Respectfully submitted and entered this 26th day of October, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: B. Edwin Johnson, Esquire Post Office Box 4688 Clearwater, Florida 33518 George M. Osborne, Esquire Rutland Central Bank Building 55 Fifth Street South St. Petersburg, Florida 33701 Ronald G. Meyer, Esquire Suite 990, Lincoln Center 5401 West Kennedy Boulevard Tampa, Florida 33609
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 The issue is whether Respondent may terminate Respondent's professional service contract for just cause, including a failure to correct performance deficiencies, pursuant to sections 1012.33(1)(a) and 1012.34(4), Florida Statutes.
Findings Of Fact Background In 1982, Respondent earned a bachelor of science degree in education from Central Michigan University where he majored in math and minored in history. The next year, Petitioner hired Respondent and assigned him to Cooper City High School, where he taught math and coached cross country and track. While teaching at Cooper City, Respondent also served as an adjunct math teacher at Broward Community College from 1992 to 1995. In 2000, Respondent transferred from Cooper City to AHS, where he taught math courses ranging from remedial to advanced. In 2006, Respondent earned a master's degree in teaching mathematics from Florida Atlantic University. On May 26, 2014, AHS Principal Angel Almanzar wrote a letter to the Superintendent recommending the dismissal of Respondent, and, on June 6, 2014, the Superintendent wrote a letter to Respondent advising that he would recommended his dismissal to Petitioner. Respondent has not taught at AHS since May 2014. While employed at AHS, Respondent diligently discharged his instructional duties. Among the first teachers to arrive at school each day, always wearing a tie, Respondent typically reported for duty at AHS between 6:15 a.m. and 6:30 a.m., which was 30 to 45 minutes before teachers were required to report. When necessary, Respondent stayed late and made himself available to meet with students during lunch. Recently retired IB Coordinator, Hallie Hooper, who taught 31 years for Petitioner, observed Respondent teach at AHS from 2001 through 2014. Focusing particularly on Respondent's Algebra II classes, Ms. Hooper found Respondent highly effective and knowledgeable about his subject and how to teach it, starting on time and teaching "from bell to bell." Although not "warm and fuzzy" with his students, according to Ms. Hooper, Respondent talked with them as he taught the daily lesson and checked the students' work during class. As Ms. Hooper noted, Respondent's students often complained that his course was too hard, but later, reflecting on how much they had learned, many were grateful for the demands that Respondent had placed on them. The record contains only limited evidence of more recent data of the academic achievement of Respondent's students. This evidence supports Ms. Hooper's assessment of Respondent's effectiveness as a teacher. In the 2008-09 school year, Respondent's math students enjoyed the greatest learning gains among AHS math students. In the 2011-12 school year, 80.6% of Respondent's regular Geometry students passed the end-of-course (EOC) exam, compared to AHS's Geometry EOC passing rate of 60%. In the same school year, when Respondent took over teaching IB math from the former chair of the AHS math department, William Peacock, the passing rates improved to 81% (13 of 16 students) in IB Math Studies and 80% (four of five students) in IB Calculus. Under Mr. Peacock, during the preceding school year, the passing rates had been 63% (12 of 19 students) among the IB Math Studies students and 50% (two of four students) and the IB Calculus students. Respondent's assignment to teach the demanding IB math classes followed the recommendation of Mr. Peacock, who based his suggestion on Respondent's knowledge of mathematics and hard work as a classroom teacher. For over 10 years, Mr. Peacock had received students who had taken math classes from Respondent, and Mr. Peacock had found these students to have been well prepared by Respondent for the next level of math. One year after Mr. Peacock's departure, AHS administrators assigned Respondent to teach remedial classes, including, possibly for the first time, Informal Geometry. Informal Geometry is a course that combines instruction in geometry with remedial instruction in Algebra I for students who are required to retake the Algebra I EOC exam to pass Algebra I. A student must obtain a certain number of math credits to obtain a high school diploma, so passing math classes has always been important. At about the same time that Respondent was assigned to teach Informal Geometry, passing at least certain math classes also required students to pass the standardized EOC exam, regardless of their grades for the class. Informal Geometry students who have failed the Algebra I EOC exam review the Algebra I curriculum and retake the Algebra I EOC exam up to three times in the succeeding school year--in September, December, and May--in order to recover the credit for Algebra I. By the time that Respondent was assigned to teach the class, Informal Geometry was therefore a high-stakes class for students seeking a diploma. The September retake of the Algebra I EOC exam is so early in the school year that the passing rates of Informal Geometry students indicate little about the effectiveness of their Informal Geometry teacher. But the passing rates of students taking the December and May retake exams reflect considerably on the Informal Geometry teacher's effectiveness. In December 2013, the AHS passing rate on the Algebra I retake exam placed the school eighth in Broward County, which by all accounts was a major achievement for AHS,2 many of whose students are below grade level in math. The credit for the school's success at the December 2013 retake of the EOC of Algebra I lies with Respondent, who was likely the only teacher of Informal Geometry at AHS.3 During this period of positive student learning in Respondent's classroom, Petitioner revamped its teacher evaluation system. In 2010 or 2011, Petitioner adopted a teacher evaluation system based on the work of Dr. Robert Marzano, including Dr. Marzano's iObservation® form. The rollout of this new teacher evaluation system was a work in progress during the years at issue in this case. The iObservation® form is a dual-purpose document to promote the professional growth of teachers and to evaluate the performance of teachers. This case involves the use of the iObservation® form for the evaluation of teachers. The iObservation® form comprises 60 strategies or criteria among four domains: Domain 1, which is instructional; Domain 2, which is planning and preparation; Domain 3, which is self-assessment; and Domain 4, which is professionalism. Domain 1 contains 41 criteria. Each criterion is accompanied by means by which an observer may assess the extent to which a teacher complies with the criterion. For Domain 1, these means are set forth as items of "Teacher Evidence" and items of "Student Evidence." Observers score criteria by issuing "datamarks" indicating the extent to which a teacher is complying with a criterion. The datamarks are "Not Using," "Beginning," "Developing," "Applying," and "Innovating." At the same time that Petitioner was adopting its new Marzano-based evaluation process, Respondent's grading policy and practices were increasingly drawing the attention of AHS administrators. Respondent assigned many Ds and Fs to his students, although the record is insufficiently developed to detail Respondent's full-year grades and compare them to the full-year grades of his comparable colleagues. Petitioner attributes the poor grades to Respondent's incompetence as a teacher, as documented by numerous completed iObservation® forms showing Respondent's failure to conform to the Marzano method of teaching. Respondent counters that the poor grades are due to two factors: 1) AHS administrators routinely allowed unqualified students to register for advanced courses and 2) students in remedial courses were unmotivated and did not try. Respondent was not the first math teacher at AHS to issue lots of poor grades, including in more advanced math classes. Toward the end of his tenure at AHS, Mr. Peacock failed upwards of 60% of his students in an Advanced Geometry class after AHS administrators declined to approve his request, at the start of the year, to transfer a number of unqualified students to regular Geometry. Conceding the obvious, Respondent's direct supervising administrator for the 2012-13 and 2013-14 school years, Assistant Principal Leslie Farr, allowed that there is "some truth" to Respondent's claim that the students were at fault for failing. At minimum, Respondent did not assign poor grades randomly or mistakenly. In this sense, the students earned these grades. The difficult--and, on this record, unanswerable--question is whether different teaching practices would have reduced the numbers of full-year Ds and Fs. More resolvable is the proper issue of the extent of Respondent's compliance with Dr. Marzano's strategies. Petitioner's first witness, former AHS Assistant Principal Errol Evans, was called to preview Respondent's deficiencies during the 2010-11 and 2011-12 school years when he observed Respondent. Assistant Principal Evans testified that he found that Respondent did not use any of the 41 Domain 1 criteria contained in the iObservation® form. This claim is difficult to credit, given the comprehensiveness of these criteria, the multiple levels of implementation recognized in the iObservation® form, and Respondent's record of student achievement during this period.4 Assistant Principal Evans also testified that he found Respondent to be "demeaning" and "insulting" to his students, and he left Respondent's classroom "totally appalled." Assistant Principal Evans added that he suggested that Respondent try various Marzano strategies. At times, Respondent flatly refused. At other times, he agreed to appear at teachers' meetings at which the Marzano strategies would be discussed, but did not show. In both of these responses, Respondent exhibited, in the words of Assistant Principal Evans, "a level of arrogance unparalleled." Respondent's defiant refusal to use Marzano strategies, his demeaning and insulting treatment of his students that left his immediate supervisor totally appalled, and his taunting failure to show at Marzano teacher meetings that he had explicitly told his immediate supervisor that he would attend--in sum, an unparalleled display of arrogance--drew two responses from Assistant Principal Evans and Principal Almanzar: a satisfactory evaluation for 2010-11 and a satisfactory evaluation for 2011-12. Likely, as Assistant Principal Evans conceded, the evaluations were satisfactory because Respondent's students performed better than the other AHS math students. The Administrative Law Judge finds that, in describing Respondent's teaching performance, Assistant Principal Evans has indulged in a little hyperbole to help his employer make its case. On at least one occasion during the 2011-12 school year, Principal Almanzar was impressed with one device used by Respondent--a device that Petitioner now cites as a problem. Respondent has long adhered to the practice of crediting and debiting points for correct and wrong answers to questions that he poses to the class. On "no-risk Fridays," though, students did not lose points for wrong answers. Respondent seemed to implement this class-participation device in such a way as to give students greater opportunities to win rather than to lose points, although this feature of the device was not readily apparent to students. In April or May 2012, Principal Almanzar observed Respondent use this academic game in a regular Geometry class, which eventually scored better than other AHS regular Geometry classes. After the class, Principal Almanzar, visibly impressed, suggested that Respondent present this device at a professional learning committee meeting. At the end of the 2011-12 school year, Assistant Principal Evans was replaced by Assistant Principal Farr. Over the course of the 2012-13 school year, Assistant Principal Farr conducted several observations of Respondent using the iObservation® form, which is described in detail below. Averaging all of the datamarks of Assistant Principal Farr and the datamarks of two other administrators who performed two observations, Respondent's IPS was 2.414, which was at the upper end of Needs Improvement, just short of the 2.5 threshold for Effective. His Student Growth Score (SGS), which was the same for all teachers that year, was 3.0, which was Effective. For the 2012-13 school year, the IPS was weighted at 60% and the SGS was weighted at 40%, so Respondent's Final Score was 2.648, which was at the lower end of Effective. For Domain 1, Respondent received 16 datamarks of Applying or Developing (which earned the same number of points for 2012-13 only), 23 datamarks of Beginning, and 4 datamarks of Not Using. For Domains 2 through 4, Respondent received 8 datamarks of Applying or Developing, 2 datamarks of Beginning, and 1 datamark of Not Using. About 10% of Respondent's datamarks, cumulatively and in Domain 1, were Not Using. Relations between the AHS administrators and Respondent were strained during the 2012-13 school year. AHS administrators had to deal with the fallout from Respondent's bad grades and disciplinary referrals and believed that better teaching would eliminate these problems. Believing that he was an effective teacher, Respondent accused AHS administrators of failing to support his practice of assigning realistic grades that might motivate the students to prepare earnestly for EOC and other high-stakes testing. On October 11, 2013, Assistant Principal Farr advised Respondent that it had been unprofessional and impolite of him three days earlier to have placed copies of a memorandum from an AHS administrator critical of some act or behavior of Respondent in the school mailboxes of other teachers. When Assistant Principal Farr directed Respondent not to do it again, Respondent replied that Assistant Principal Farr lacked the authority to prohibit him from doing so and, whenever an administrator gave him something "stupid," he would copy and disseminate it to the other teachers. Assistant Principal Farr issued Respondent a reprimand for his defiance on October 31, 2013. Not long after this incident, probably early in the second semester of the 2012-13 school year, Principal Almanzar initiated a cycle of assistance for Respondent due to the administrator's concerns about Respondent's delivery of curriculum, failure to conform to the Marzano strategies, poor relationships with students, excessive number of disciplinary referrals, and defiance toward administrators, but mostly because Respondent was assigning poor grades to too many students. The cycle of assistance did not focus on particular deficiencies perceived by Principal Almanzar. Principal Almanzar selected two coaches for Respondent: Maxine Spadaro, who was a math curriculum coach at AHS, and Linda Kal Sander, who was a literacy coach at AHS. Both coaches produced detailed records of their assistance during the 2012-13 school year. These emails reveal both coaches to be hard-working and capable professionals in their respective educational fields. As of the hearing, both coaches remained employed by Petitioner, and the Administrative Law Judge has credited their contemporaneous emails over elements of their testimony, which has been shaped somewhat by their knowledge of their employer's interest in securing the dismissal of Respondent. By email dated January 15, 2013, Ms. Kal Sander informed Respondent that she had been asked to support him in implementing Dr. Marzano's principles in engaging students. She stated that she visited Respondent's classroom the prior month to observe his teaching methods. Ms. Kal Sander advised that the research suggests that he should stay with a student who has given a wrong answer until he gets the right answer, rather than leave him and move on to another student. By email dated January 24, 2013, Ms. Spadaro documented her first observation a few days earlier. She noted that she had seen students answering questions after being called upon, earning one point for correct answers and losing one point for incorrect answers--she added, "with student approval." Ms. Spadaro has spoken with Respondent about penalizing a student for a wrong answer, and Respondent had assured her that he did not really do so when recording class participation grades. Ms. Spadaro had replied that the students did not know that. The January 24 email acknowledges that Respondent knew the names of the students on whom he called. The email adds that, as Respondent gave the answers to the homework assignment, most of the students did not have their homework assignment in front of them, and, when Respondent asked if anyone had any questions, only one student asked a question. The January 24 email suggests that Respondent wait a few seconds after asking a question and then call on any student, not always a student who had raised her hand; require students to have their homework assignments open on their desks and go over the answers more slowly; and, instead of asking the class if anyone has any questions, use the "four-finger method," in which a student may signal with his fingers the extent of his understanding, or lack of understanding, without embarrassing himself with his peers. By email dated January 29, 2013, Ms. Kal Sander memorialized her classroom observation earlier that day. The email commends Respondent for his "thorough . . . explanations . . . to your students." The email documents that Respondent had integrated technology, supported his students, provided direct instruction from the concrete to the abstract, executed a gradual release of responsibility, checked for understanding and accuracy among the students, questioned the student whose board work was incorrect, suggested support materials that students might use during independent practice, and demonstrated "withitness" and easy rapport with the students. Ms. Kal Sander's email concludes: "If I were to offer any advice concerning the delivery of this lesson, I would only suggest that, when releasing the task to the students, they "might have the opportunity" to work with a partner or check each other's work prior to regrouping. Ms. Kal Sander noted that this was a minor suggestion because of the presence of merely four students in the class, suggesting that she had observed an IB class. By email dated February 5, 2013, Ms. Spadaro confirmed an observation of Respondent's Geometry class earlier in the afternoon. She saw Respondent calling out answers from the homework assignment and asking if anyone had any questions. She noted that students appeared lost, although no one raised a hand. Respondent projected a test on a board and went over the answers, showing how the problems are solved. Only one student raised his hand during this lesson. Noting that most of the students had failed the test, Ms. Spadaro asked how Respondent could ensure that the students had assimilated the information on the test. She suggested that Respondent allow the students to give their answers for their homework and explain how they arrived at their answers. Ms. Spadaro recommended that Respondent continue to use the board to explain problems to help students who are visual learners. She advised Respondent to re-teach the materials on the test that most of the students had failed. By email dated February 11, 2013, Ms. Spadaro memorialized an earlier suggestion that Respondent set up some of his lessons so that the students could work in groups of two or three because cooperative learning usually meant active learning. Ms. Spadaro offered to help develop the groupings. By email dated February 14, 2013, Ms. Kal Sander reviewed an observation of a Geometry class that had taken place two days earlier. She found the students seated in pairs, the lesson presented in smaller chunks, and rules governing the subject--the geometric form known as a rhombus--given orally and in writing on the board, but no integration of technology. During a question-and-answer session, Respondent once stayed with a student until he successfully answered the question, which Ms. Kal Sander had suggested in her January 15 email. Other times, though, Respondent reverted to the warning that a wrong answer would cost a point and asked other students to point out the error in the answering student's wrong answer, after which only one student raised her hand. Ms. Kal Sander offered to discuss with Respondent how to make the question-and-answer session more "'rewards' based." Ms. Kal Sander cited two pages from a book authored by Dr. Marzano suggesting four strategies for managing questions and responses--wait times, response cards, choral responses, and response chaining--and four ways of analyzing errors--faulty logic, attacks, weak reference, and misinformation. Lastly, Ms. Kal Sander criticized Respondent for publicly reprimanding a student who had not brought his materials to class, suggesting that Respondent project the materials onto a wall or screen. By email dated February 15, 2013, Ms. Spadaro documented a classroom observation the prior day. The email states that, on her arrival, the class was transitioning from a test to a lesson, but not all of the students had finished the test. Respondent explained the lesson with examples on the board and called on students to explain problems, as she had recommended in her February 5 email. She noted that Respondent used the "four-finger method" to ensure student comprehension, as she had recommended in her January 24 email. Ms. Spadaro suggested that, rather than present a lesson while students are finishing a test, Respondent present enrichment or review material. She also suggested that Respondent use visuals while presenting materials. By email dated February 20, 2013, Ms. Spadaro acknowledged having observed Respondent earlier that day. She had seen the students take a 20-minute quiz, after which Respondent projected the answers on the board for review. Unfortunately, Respondent also complained to the students that he was being harassed by AHS administrators, including Ms. Spadaro. Ms. Spadaro objected that Respondent's comments concerning her classroom observations were "unprofessional" and demanded that Respondent behave in a more professional manner. He did not again complain about Ms. Spadaro in front of his students. The next day, Respondent had a similar episode with Ms. Kal Sander. By email dated February 21, 2013, Ms. Kal Sander documented her classroom observation earlier in the day. When Respondent opened the classroom door, he saw Ms. Kal Sander and asked if she was there to help him. She tactfully replied "yes," if he should need her help. Respondent answered that he did not need her help and she had not helped so far. Respondent added that Ms. Kal Sander's presence was "harassment." Ms. Kal Sander politely objected to Respondent's comments and left the classroom. Respondent never again embarrassed her in the presence of students. By email dated February 22, 2013, Ms. Spadaro noted a classroom observation of the same date. She found Respondent collecting student work and going over the problems from an assignment. After finishing this task, Respondent then reviewed workbook assignments. He called on various students to give and explain answers with no risk of losing points, as she had suggested in her January 24 email, although this was a "no-risk Friday." Ms. Spadaro noticed that more students than usual participated. When reviewing the geometric mean, Respondent kept going through students until one finally answered the question, but never explained the basis for the answer. Ms. Spadaro suggested that Respondent "continue" helping visual learners by drawing on the board. She also suggested not penalizing students for wrong answers. Lastly, she recommended that Respondent explain incorrect answers, adding that, if he grouped his students, the other students in the group could help students who were confused. By email dated February 27, 2013, Ms. Spadaro responded to Respondent's request for EOC support and provided him with references to useful materials. By email dated March 14, 2013, Ms. Spadaro stated that it was nice seeing Respondent earlier on that day and discussing certain EOC data. By email dated March 14, 2013, Ms. Spadaro stated that it had been nice having a conversation with Respondent about the EOC data. The email confirms that they agreed that Respondent would continue to use class warm-ups that incorporated benchmarks that would be covered on the Geometry EOC exam. By email dated March 21, 2013, Ms. Spadaro noted that she had observed Respondent earlier in the day. She found all but one of the students were engaged in working on a practice problem in the workbook. The lone student had forgotten his workbook, and Respondent had warned him that he would lose a point if he asked to borrow a workbook. The students were all working independently with their desks in rows, as Respondent delivered the lesson by direct instruction. Respondent again used the "four-finger method" to assure student understanding, as Ms. Spadaro had advised in her January 24 email. Ms. Spadaro recommended not penalizing the student for sharing a workbook. She also suggested allowing the students to work in groups of two or three. By email dated April 5, 2013, Ms. Kal Sander documented an observation earlier that day. She appreciated the notes that Respondent had placed on the board for the students as they worked on practice EOC questions. Referring to a specific principle authored by Dr. Marzano, Ms. Kal Sander asked if Respondent should allow each student three to five minutes to discuss his or her answers to the practice EOC questions with another student before turning in his or her work, so that the students could review similarities and differences, examine errors, and revise knowledge. This suggestion implies that small-group instruction may take place by this means and does not invariably require moving desks out of rows. By email dated April 12, 2013, Ms. Kal Sander complimented Respondent: "I am always amazed how quickly the concepts [of geometry] come back to me when you explain them the way that you do. I appreciated that you projected the reference sheet and gave so many explanations for solving the sector problems." Referring to the fact that she had observed a "no-risk Friday," Ms. Kal Sander saw that the same two or three students were the only ones raising their hands, suggesting that the risk of losing points might not have been the major deterrent to student participation that Petitioner now contends that it was. By email dated April 16, 2013, Ms. Spadaro noted a brief classroom visit on that day. She witnessed Respondent's reviewing content for an upcoming test with visuals on the board, student participation, and a clear statement of expectations. By email dated April 26, 2013, Ms. Spadaro documented classroom observations of April 24 and 26. On April 24, Ms. Spadaro found Respondent walking around the room monitoring students taking the daily quiz, reviewing answers by calling on students individually, asking students to explain their answers, and using visuals to explain problems. On April 26, Ms. Spadaro found the same methods, adding that she also saw a lot of student interaction. The final emails during the 2012-13 school year suggest a successful conclusion to the cycle of assistance. The two coaches noted Respondent's productive use of several Marzano strategies, acknowledged that Respondent had tried many of their suggestions, and cited no major outstanding problems. 2013-14 School Year Cycle of Assistance and PDP However, Principal Almanzar continued the cycle of assistance for Respondent in the 2013-14 school year. There is no evidence of any communications between the coaches and the AHS administrators, other than the copying of the coaches' emails to one of the administrators. The coaches were evidently reassigned the task of inducing Respondent to adopt more Marzano strategies, especially small-group instruction, more of the time. For the 2013-14 school year, Principal Almanzar added John O'Brien to those who were providing assistance to Respondent. Not a coach, Mr. O'Brien is a "Marzano peer reviewer" from the District office. Mr. O'Brien previously had served seven years as a law enforcement officer and initially had come to work for the District as a "security specialist," but had taught, mostly math, for a total of 16 years. Reminiscent of Assistant Principal Evans, Mr. O'Brien painted an unflattering portrait of Respondent in the classroom, mostly, but not entirely, in broad strokes. Mr. O'Brien testified that he observed negativity on Respondent's part, such as warning inattentive students that they would get bad grades if they did not behave and pay attention. One time, Respondent did so after noticing seven or eight students who were visibly disengaged. When the students persisted in ignoring him, Respondent warned the students that he was going to call their homes or an administrator, and they would be out of class. He finally sent them to the office and asked if anyone else wanted to go with them. Three more students joined them. Mr. O'Brien testified that he heard Respondent say to the class that the administration was out to get him and Assistant Principal Farr was not a good Marzano evaluator. Mr. O'Brien testified that Respondent only occasionally used effective instructional practices. Mr. O'Brien also witnessed a tense encounter between Respondent and Ms. Kal Sander in March 2014, which is described below. Otherwise, Mr. O'Brien's testimony lacked much detail, even though he had observed Respondent on numerous occasions in the classroom. In particular, Mr. O'Brien did not describe any of Respondent's teaching practices, regardless of the extent to which they conformed to the Marzano method. The coaches and even Assistant Principal Farr in his 2013-14 observations found some good things about Respondent's teaching. As already noted, Respondent's students made positive academic gains, and his evaluations in prior years were satisfactory. The lack of balance in Mr. O'Brien's depiction of Respondent undermines Mr. O'Brien's credibility. One year later, Mr. O'Brien's largely conclusory testimony disparaging Respondent is outweighed in particular by the contemporaneous, detailed evidence provided by the coaches. The coaches, whose job title suggests a primary responsibility to train and counsel, found time to document what they observed in Respondent's classroom, but a former law enforcement officer and Marzano peer reviewer, whose job title suggests a primary responsibility to assess, did not. Ultimately, the conclusory testimony of Mr. O'Brien, like that of Assistant Principal Evans, has been rejected as unworthy of belief. Ms. Kal Sander also did not document her 2013-14 observations of Respondent, as she had the previous year. However, she recalled clearly one incident. Likely in early March 2014, Ms. Kal Sander modeled cooperative learning in small groups to demonstrate how Respondent could enhance student engagement and facilitate monitoring of student understanding. The presentation had required Ms. Kal Sander to master the subject matter of the lesson, and she had worked hard to do so. During the class, the students were engaged and turned in an assignment that they had done during class. After the students had left the room, a brief meeting took place with Ms. Kal Sander, beaming in pride; Respondent, stewing in frustration; and Mr. O'Brien, witnessing. Instead of complimenting Ms. Kal Sander, Respondent claimed that she had not done anything that he was not doing, and he could get the same results in terms of all of the students turning in their classroom assignments at the end of the period. Ms. Kal Sander demanded to know how Respondent could say that when 59% of his students had Fs in the class. Respondent replied that she had not been very effective. Ms. Kal Sander stormed out of the room in tears, returning briefly to tell Mr. O'Brien to tell the administration that she was done coaching Respondent. As she turned to walk away, she uttered, to herself, a one- or two-word expletive description of Respondent that, unfortunately, he overheard. Ms. Kal Sander's momentary lapse was nothing more than her unconsciously giving audible utterance to a passing thought after an exhausting teaching performance and an adverse review of her work by Respondent. Respondent did not react to her comment, adding some credibility to his self-description as an "old fashioned guy." As a result of Respondent's decision not to react to Ms. Kal Sander's comment, the meeting after class was nothing more than a frank exchange of opinions between Respondent and Ms. Kal Sander. At the hearing, Respondent elaborated on his frustration about Ms. Kal Sander's teaching performance. First, Respondent had tried on numerous occasions to have Mr. O'Brien, who, unlike Ms. Kal Sander, had formerly taught math, model the Marzano method, but Mr. O'Brien had declined because he was concerned that the class might not go well. Second, Ms. Kal Sander had not modeled cooperative learning so much as team teaching because, while she taught, Mr. O'Brien circulated through the room monitoring the students for understanding; a lone teacher could not replicate the work of two teachers. By email dated March 7 to Principal Almanzar, Ms. Kal Sander alluded to her unpleasant exchange with Respondent after she had taught his class, and she told Principal Almanzar that she was "withdrawing support as I feel that I have a right to work [sic] a non-hostile environment." Ms. Kal Sander's description of her sometimes-fraught relationship with Respondent as "hostile" is rejected as unsupported by the record. Ms. Spadaro documented her contacts with Respondent during the 2013-14 school year, but most of the early emails seem to be more in her capacity as math curriculum coach than as Respondent's coach. On August 29, 2013, Ms. Spadaro asked Respondent about the failure of one of his classes to use the computer lab during its scheduled time. The same day, Respondent emailed her that the class had refused to cooperate in the lab, and he had had to end the session. By email dated September 9, 2013, Ms. Spadaro offered to help Respondent plan to prepare his Informal Geometry students to retake the Algebra I EOC exam in December. By email dated September 12, Ms. Spadaro attached several practice tests and other test-preparation materials in connection with the Algebra I EOC retake exam in December--the September retake exam being one week away, so Respondent presumably did not have enough time to help students taking this test to prepare for it. By email dated October 22, 2013, Ms. Spadaro asked if Respondent had any questions about some teaching materials that she had given him several days earlier. By email dated November 5, 2013, Ms. Spadaro noted that only one student from the first-period class had taken a certain assessment in a test-preparation program. She asked Respondent to have the rest of his students take this assessment as soon as possible. By email dated November 6, 2013, Ms. Spadaro advised Respondent of some additional teaching materials that had become available for his use. More clearly returning to her role as a coach in the cycle of assistance, by a second email dated November 6, Ms. Spadaro stated that she had thought a lot about a recent conversation she and Respondent had had concerning grouping. She admitted, "I fought it many years ago, and finally tried it. It does work, no matter what level students you have." She asked Respondent to take the time to read the research supporting small-group instruction. By email dated November 15, 2013, Ms. Spadaro provided Respondent with more class warm-ups and promised to visit an Informal Geometry class to help prepare the students for the December EOC re-exam. By email dated November 20, Ms. Spadaro noted that Respondent had used a practice test during her observation, as a warm-up, in preparation for the EOC re-exam. She asked how Respondent knew that the students had understood the problems that he had gone over because he had not undertaken a check for understanding. She also mentioned additional warm- ups that she had transmitted to Respondent and explained how they related to the monthly assessment that the students were taking. By reply email dated later in the day on November 20, Respondent stated that he had complied with her directive to go over an Algebra I EOC practice exam. By email dated December 13, 2013, with a copy to Assistant Principal Farr, Ms. Spadaro complimented Respondent on a "nice job" the prior day in having his students work collaboratively in small groups. Ms. Spadaro agreed with Respondent's comment that working with partners, manipulatives, and physical movement had helped a lot. Ms. Spadaro stated that student engagement had neared 100%, but dropped dramatically when the desks were returned to rows for direct instruction. Recognizing that there will always have to be some direct instruction, Ms. Spadaro suggested that Respondent try leaving the desks in small groups during his lectures. By email dated January 10, 2014, Ms. Spadaro documented an observation three days earlier. She noted that Respondent's explanation of Venn diagrams had been "well done," but some students had appeared puzzled during the first independent assignment. Although a couple of the students had asked their neighbors for help, most had not. She asked if working in groups would have helped these students. Ms. Spadaro also asked how Respondent knew that the students had understood the lesson because Respondent had answered his own questions, although he had walked around the room a couple of times and checked the students' work. On February 3, 2014, Principal Almanzar and Assistant Principal Farr issued a PDP for Respondent. The PDP identifies deficiencies as iObservation® Criteria 1, 2, 6, 7, 8, 9, 15, 18, 19, 24, 26, and 28, all of which are discussed in detail below. The PDP contains a review date of March 20 and a deadline of May 13. The PDP warns that a failure to demonstrate "mastery" of the cited deficiencies will result in a "less than effective BrIDGES evaluation" or dismissal from employment. "Mastery" is not defined in the PDP, nor, as discussed below, in the iObservation® form.5 Principal Almanzar's belated identification of Respondent's deficiencies was news to Ms. Spadaro, who would have known better than Principal Almanzar what, if any, deficiencies undermined Respondent's effectiveness as a teacher. In her first email after the PDP, which is dated February 4, Ms. Spadaro refers to the PDP indirectly by noting: "Now that we know, with specificity, the areas that are targeted for support, I would like to continue to collaborate with you to effectively address administrative concerns." By email dated February 11, Ms. Spadaro recommended that Respondent set up some of his lessons to allow his students to work in groups of two or three. She counseled that "cooperative learning more often than not engages active learning." The email offers additional help for forming groups. By email dated February 12, Ms. Spadaro confirmed her delivery a few days earlier of a "check for understanding" rubric and noted that she witnessed Respondent's using this strategy on the previous day. She offered to model the use of this strategy. She suggested that Respondent contact another teacher, who had other rubrics posted in his classroom. By email dated February 20, Ms. Spadaro provided Respondent with two links to Marzano practices, including grouping, and a third link to grouping. She advised that Respondent put some thought into grouping his students, considering such matters as what were his goals. Ms. Spadaro offered to help Respondent decide how to implement small-group instruction. By email dated March 5, Ms. Spadaro documented a discussion that she had with Respondent earlier in the day on tracking student progress. Ms. Spadaro stated that one of Respondent's students had approached her with a concern about a 30-question quiz that he had given the students the other day. The student had said that many of the students had not had enough time to finish the test, so Respondent had offered them the chance to stay over lunch to finish it. Not all students had accepted this offer. Ms. Spadaro pointed out that, for some students, this is their only meal of the day. It is unclear whether Ms. Spadaro knew that Respondent was already making himself available to students before and after school. More importantly, Ms. Spadaro asked Respondent what really had happened--specifically, had there been enough time to do the test in the 50 minutes of class time? If not, she suggested that he should have added more time or shorten the quiz. She concluded with a request: "Please let me know . . . how you handled the situation so that I can field any other issues on this matter." Regardless of whether this is a reference to questions or complaints from other students or AHS administrators, Ms. Spadaro seems to have been trying to acquire the information necessary to defend Respondent. By email dated March 19, Ms. Spadaro provided Respondent with a Powerpoint® presentation on iObservation® Criterion 1. On this anti-climactic note, Respondent's cycle of assistance came to an end. Collective Bargaining Agreement and Memorandum of Understanding The collective bargaining agreement (CBA) in effect for the 2013-14 school year provides for "progressive discipline" based on "just cause." CBA, art. 18, para. B.1.a. The range of discipline includes reprimand, suspension, demotion, and termination. Id. At the start of the 2013-14 school year, according to the CBA, the purpose of the teacher-evaluation process was "the improvement of individual and collective teaching performance resulting in optimal student learning." CBA, art. 18, para. F.1.a. The CBA acknowledged that "[e]ducational research has not identified a single uni-dimensional construct called 'effective teaching.' Teachers must pursue a variety of models of effective teaching." Because the educational environment is "complex and variable," the CBA continued, "great weight should be placed on teacher judgment to guide the activities of student learning." CBA, art. 18, para. F.1.b. The CBA added that the teacher-evaluation process must help the teacher in "improving deficiencies as well as contribute to their professional growth and development." CBA, art. 18, para. F.1.c. Each of the provisions set forth in the preceding paragraph was superseded by agreement between Petitioner and BTU. Memorandum of Understanding Between [Petitioner and BTU] dated October 8, 2013 (MOU), para. 22. The Marzano teaching strategies--having ripened from suggestions into mandates-- override "teacher judgment," as the Marzano method now set forth the single construct of "effective teaching." Noting that the new evaluation system, BrIDGES, is based on the "Marzano Professional Growth Model,"6 the parties to the MOU set forth the entire teacher-evaluation process, of which the iObservation® form is a part. MOU, paras. 1-2. According to the MOU, BrIDGES comprises an IPS and a Student Data Score (SDS, which replaces the above-described SGS used in the preceding school year); a Deliberate Practice Score (DPS) may be considered part of the IPS or a separate score. MOU, paras. 2-3. Either way, for the 2013-14 school year, a teacher's Final Score was a product of her IPS weighted at 49%, DPS weighted at 1%, and SDS weighted at 50%. Id. Simplifying matters for the 2013-14 school year, the DPS was set at 3 points for all teachers completing a self-assessment form. MOU, para. 3. Judging from Petitioner Exhibit 16, Respondent completed the self-assessment because he received 3 points for the DPS. Also as reflected in Petitioner Exhibit 16, Respondent was assigned 3 points for the SDS--again, it seems, based on the points assigned to all of Petitioner's teachers, or at least all AHS teachers. The MOU states that the Florida Department of Education would use the Value Added Model to generate SDSs based on student achievement data, but the document notes that both sides were still trying to determine this score. Id. at para. 12. For 2013-14, the IPS was a product of the Domain 1 scores weighted at 68% and Domains 2, 3, and 4 scores weighted at 32%. Id. at para. 3. In awarding datamarks for Domain 1, an observer "shall consider supplemental documentation." Id. at para 5. But the MOU does not define "supplemental documentation," and the meaning of this requirement in Domain 1 is uncertain. In awarding datamarks for Domains 2 through 4, an observer "shall consider supplemental documentation, evidences, and/or artifacts provided by the educator." Id. These requirements make more sense due to the items of Teacher Evidence and, for Criteria 42 and 44, items of Planning Evidence that are discussed below. The MOU requires teachers to receive at least three observations--a snapshot, an informal, and a formal--and at least 45 datamarks, including at least 25 datamarks in Domain 1 and 10 datamarks in Domains 1, 2, and 3. Id. The recommendations for a snapshot observation are 3 to 10 minutes' duration with two to three datamarks, an informal observation are 15 to 25 minutes' duration with 5 to 10 datamarks, and a formal observation are at least 30 minutes' duration with 12 to 15 datamarks. Id. Administrators are to "make every effort to allow for a reasonable amount of time for growth between observations." Id. For the 2013-14 school year, a datamark of Innovating earns 4 points, Applying earns 3 points, Developing earns 2.5 points, Beginning earns 2 points, and Not Using earns 1 point. Id. at para. 5. The MOU adopts the "Averages Model" for the IPS, which produces an average score by adding the points assigned to each datamark and dividing the result by the total number of the datamarks. Id. For 2013-14, the "Overall Evaluation Scale" is Highly Effective from 4.0 to 3.45 points, Effective from 3.449 to 2.5 points, Needs Improvement from 2.499 to 2.0 points, and Unsatisfactory from 1.999 to 1.0 points. Id. The "Overall Evaluation Scale" is in the paragraph of the MOU that describes the IPS calculation, but seems to apply equally to the Final Score that results from combining the IPS, DPS, and SDS in accordance with their above-stated weights. A teacher may be given a PDP once she has received 10 Not Using or Beginning scores, an average IPS of Needs Improvement, and at least three observations, including two formal observations. Id. at para. 11. The MOU states that a "process shall be developed" to provide employees scored as Needing Improvement or Unsatisfactory with "sound professional assistance and development to help correct job performance deficiencies." Id. at para. 15. Using "mentors, coaches, and peer reviewers, [Petitioner] will determine and provide the appropriate training and development." Id. In particular, peer reviewers "will provide feedback and enhanced growth opportunities based on effective teaching strategies." Id. at para 20. During the 2013-14 school year, these elements of the evaluation process had not yet been implemented. The suggestion in the last paragraph that Petitioner will develop policies in the future extends to another provision of the MOU. This provision promises that "procedures shall be developed to address employment decisions for employees rated at each level of BrIDGES. Procedures should address actual rating, employee experience, assistance provided, improvement demonstrated, and other pertinent factors." Id. The MOU thus anticipates that, at some point, employment decisions will be based on a teacher's Final Score, experience, coaching assistance, and demonstrated improvement, among other things. Based on the following findings of fact, it is unnecessary to consider whether Petitioner may presently base an adverse employment decision solely on an IPS or Final Score. Count 4: Failure to Correct Performance Deficiencies iObservation® Form: Domain 1 Domain 1 Criteria The 41 iObservation® criteria for Domain 1 are set forth below. Items of Teacher Evidence and items of Student Evidence accompany each Domain 1 criterion in the iObservation® form. The excerpts omit all items of Student Evidence and, except for Criterion 37, those items of Teacher Evidence for criteria that were not assessed during the 2013-14 school year. Providing Clear Learning Goals and Scales (Rubrics) The teacher provides a clearly stated learning goal accompanied by scale or rubric that describes levels of performance relative to the learning goal. Teacher Evidence Teacher has a learning goal posted so that all students can see it The learning goal is a clear statement of knowledge or information as opposed to an activity or assignment Teacher makes reference to the learning goals throughout the lesson Teacher has a scale or rubric that relates to the learning goal posted so that all students can see it Teacher makes reference to the scale or rubric throughout the lesson Tracking Student Progress The teacher facilitates tracking of student progress on one or more learning goals using a formative approach to assessment. Teacher helps student track their [sic] individual progress on the learning goal Teacher uses formal and informal means to assign scores to students on the scale or rubric depicting student status on the learning goal Teacher charts the progress of the entire class on the learning goal Celebrating Success The teacher provides students with recognition of their current status and their knowledge gain relative to the learning goal. Teacher acknowledges students who have achieved a certain score on the scale or rubric Teacher acknowledges students who have made gains in their knowledge and skill relative to the learning goal Teacher acknowledges and celebrates the final status and progress of the entire class Teacher uses a variety of ways to celebrate success Show of hands Certification of success Parent notification Round of applause Establishing Classroom Routines The teacher reviews expectations regarding rules and procedures to ensure their effective execution. Organizing the Physical Layout of the Classroom The teacher organizes the physical layout of the classroom to facilitate movement and focus on learning. The physical layout of the classroom has clear traffic patterns The physical layout of the classroom provides easy access to materials and centers The classroom is decorated in a way that enhances student learning: Bulletin boards relate to current content Students['] work is displayed Identifying Critical Information The teacher identifies a lesson or part of a lesson as involving important information to which students should pay particular attention. Teacher Evidence Teacher begins the lesson by explaining why upcoming content is important Teacher tells students to get ready for some important information Teacher cues the importance of upcoming information in some indirect fashion Tone of voice Body position Level of excitement Organizing Students to Interact with New Knowledge The teacher organizes students into small groups to facilitate the processing of new information. Teacher Evidence Teacher has established routines for student grouping and student interaction in groups Teacher organizes students into ad hoc groups for the lesson Diads Triads Small groups up to about 5 Processing New Content The teacher engages students in activities that help them link what they already know to the new content about to be addressed and facilitates these linkages. Teacher Evidence Teacher uses preview question before reading Teacher uses K-W-L [Know, Want to Know, Learned] strategy or variation of it Teacher asks or reminds students what they already know about the topic Teacher provides an advanced organizer Outline Graphic organizer Teacher has students brainstorm Teacher uses anticipation guide Teacher uses motivational hook/launching activity Anecdotes Short selection from video Teacher uses word splash activity to connect vocabulary to upcoming content Chunking Content into "Digestible Bites" Based on student needs, the teacher breaks the content into small chunks (i.e. digestible bites) of information that can be easily processed by students. Teacher Evidence Teacher stops at strategic points in a verbal presentation While playing a video tape, the teacher turns the tape off at key junctures While providing a demonstration, the teacher stops at strategic points While students are reading information or stories orally as a class, the teacher stops at strategic points Processing New Information During breaks in the presentation of content, the teacher engages students in actively processing new information. Teacher Evidence Teacher has group members summarize new information Teacher employs formal group processing strategies Jigsaw Reciprocal Teaching Concept attainment Elaborating on New Information The teacher asks questions or engages students in activities that require elaborative inferences that go beyond what was explicitly taught. Teacher Evidence Teacher asks explicit questions that require students to make elaborative inferences about the content Teacher asks students to explain and defend their inferences Teacher presents situations or problems that require inferences Recording and Representing Knowledge The teacher engages students in activities that help them record their understanding of new content in linguistic ways and/or represent the content in nonlinguistic ways. Teacher Evidence Teacher asks students to summarize the information they have learned Teacher asks students to generate notes that identify critical information in the content Teacher asks students to create nonlinguistic representations for new content Graphic organizers Pictures Pictographs Flow charts Teacher asks students to create mnemonics that organize the content Reflecting on Learning The teacher engages students in activities that help them reflect on their learning and the learning process. Teacher Evidence Teacher asks students to state or record what they are clear about and what they are confused about Teacher asks students to state or record how hard they tried Teacher asks students to state or record what they might have done to enhance their learning Reviewing Content The teacher engages students in a brief review of content that highlights the critical information. Teacher Evidence Teacher begins the lesson with a brief review of content Teacher uses specific strategies to review information Summary Problem that must be solved using previous information Questions that require a review of content Demonstration Brief practice test or exercise Organizing Students to Practice and Deepen Knowledge The teacher uses grouping in ways that facilitate practicing and deepening knowledge. Teacher Evidence Teacher organizes students into groups with the expressed idea of deepening their knowledge of informational content Teacher organizes students into groups with the expressed idea of practicing a skill, strategy, or process Using Homework When appropriate (as opposed to routinely) the teacher designs homework to deepen students' knowledge of informational content or practice a skill, strategy, or process. Teacher Evidence Teacher communicates a clear purpose for homework Teacher extends an activity that was begun in class to provide students with more time Teacher assigns a well-crafted homework assignment that allows students to practice and deepen their knowledge independently Examining Similarities and Differences When the content is informational, the teacher helps students deepen their knowledge by examining similarities and differences. Teacher Evidence Teacher engages students in activities that require students to examine similarities and differences between content Comparison activities Classifying activities Analogy activities Metaphor activities Teacher facilitates the use of these activities to help students deepen their understanding of content Ask students to summarize what they have learned from the activity Ask students to explain how the activity has added to their understanding Examining Errors in Reasoning When content is informational, the teacher helps students deepen their knowledge by examining their own reasoning or the logic of the information as presented to them. Teacher Evidence Teacher asks students to examine information for errors or informal fallacies Faulty logic Attacks Weak reference Misinformation Teacher asks students to examine the strength of support presented for a claim Statement of a clear claim Evidence for the claim presented Qualifiers presented showing exceptions to the claim Practicing Skills, Strategies, and Processes When the content involves a skill, strategy, or process, the teacher engages students in practice activities that help them develop fluency. Teacher Evidence Teacher engages students in massed and distributed practice activities that are appropriate to their current ability to execute a skill, strategy, or process. Guided practice if students cannot perform the skill, strategy, or process independently Independent practice if students can perform the skill, strategy, or process independently Revising Knowledge The teacher engages students in revision of previous knowledge about content addressed in previous lessons. Organizing Students for Cognitively Complex Tasks The teacher organizes the class in such a way as to facilitate students working on complex tasks that require them to generate and test hypotheses. Teacher Evidence Teacher establishes the need to generate and test hypotheses Teacher organizes students into groups to generate and test hypotheses Engaging Students in Cognitively Complex Tasks Involving Hypothesis Generation and Testing The teacher engages students in complex tasks (e.g. decision making, problem solving, experimental inquiry, investigation) that require them to generate and test hypotheses. Providing Resources and Guidance The teacher acts as resource provider and guide as students engage in cognitively complex tasks. Noticing When Students are Not Engaged The teacher scans the room making note of when students are not engaged and takes overt action. Teacher Evidence Teacher notices when specific students or groups of students are not engaged Teacher notices when the energy level of the room is low Teacher takes action to re-engage students Using Academic Games The teacher uses academic games and inconsequential competition to maintain student engagement. Managing Response Rates The teacher uses response rate techniques to maintain student engagement in questions. Teacher Evidence Teacher uses wait time Teacher uses response cards Teacher has students use hand signals to respond to questions Teacher uses choral response Teacher uses technology to keep track of students' responses Teacher uses response chaining Using Physical Movement The teacher uses physical movement to maintain student engagement. Maintaining a Lively Pace The teacher uses pacing techniques to maintain students' engagement. Teacher Evidence Teacher employs crisp transitions from one activity to another Teacher alters pace appropriate (i.e. speeds up and slows down) Demonstrating Intensity and Enthusiasm The teacher demonstrates intensity and enthusiasm for the content in a variety of ways. Using Friendly Controversy The teacher uses friendly controversy techniques to maintain student engagement. Teacher Evidence Teacher structures mini-debates about the content Teacher has students examine multiple perspectives and opinions about the content Teacher elicits different opinions on content from members of the class Providing Opportunities for Students to Talk about Themselves The teacher provides students with opportunities to relate what is being addressed in class to their personal interests. Presenting Unusual or Intriguing Information The teacher uses unusual or intriguing information about the content in a manner that enhances student engagement. Teacher Evidence Teacher systematically provides interesting facts and details about the content Teacher encourages students to identify interesting information about the content Teacher engages students in activities like "Believe it or not[!®]" about the content Teacher uses guest speakers to provide unusual information about the content Demonstrating "Withitness" The teacher uses behaviors associated with "withitness" to maintain adherence to rules and procedures. Teacher Evidence Teacher physically occupies all quadrants of the room Teacher scans the entire room making eye contact with all students Teacher recognizes potential sources of disruption and deals with them immediately Teacher proactively addresses inflammatory situations Applying Consequences for Lack of Adherence to Rules and Procedures The teacher applies consequences for not following rules and procedures consistently and fairly. Teacher Evidence Teacher provides nonverbal signals when students' behavior is not appropriate Eye contact Proximity Tap on desk Shaking head, no Teacher provides verbal signals when students' behavior is not appropriate Tells students to stop Tells students that their behavior is in violation of a rule or procedure Teacher uses group contingency consequences when appropriate (i.e. whole group must demonstrate specific behavior) Teachers involves the home when appropriate (i.e. makes a call home to parents to help extinguish inappropriate behavior) Teacher uses direct cost consequences when appropriate (e.g. student must fix something he or she has broken) Acknowledging Adherence to Rules and Procedures The teacher consistently and fairly acknowledges adherence to rules and procedures. Understanding Students' Interests and Background The teacher uses students' interests and background to produce a climate of acceptance and community. Using Verbal and Nonverbal Behaviors that Indicate Affection for Students When appropriate, the teacher uses verbal and nonverbal behavior that indicates caring for students. Teacher Evidence Teacher compliments students regarding academic and personal accomplishments Teacher engages in informal conversations with students that are not related to academics Teacher uses humor with students when appropriate Teacher smiles, nods, etc. at students when appropriate Teacher puts hand on students' shoulders when appropriate Displaying Objectivity and Control The teacher behaves in an objective and controlled manner. Demonstrating Value and Respect for Low Expectancy Students The teacher exhibits behaviors that demonstrate value and respect for low expectancy students. Asking Questions of Low Expectancy Students The teacher asks questions of low expectancy students with the same frequency and depth as with high expectancy students. Probing Incorrect Answers with Low Expectancy Students The teacher probes incorrect answers of low expectancy students in the same manner as he/she does with high expectancy students. For each of the Domain 1 criteria, the datamarks are as follows: Not Using: Strategy was called for but not exhibited. Beginning: Uses strategy incorrectly or with parts missing. Developing: [Complies with the requirement or requirements set forth in the criterion], but the majority of students are not monitored for the desired effect of the strategy. Applying: [Complies with the requirement or requirements set forth in the criterion] and monitors for evidence of the impact of [compliance] on the majority of [students for the desired effect of the strategy]. Innovating: Adapts and creates new strategies for unique student needs and situations in order for the desired effect to be evident in all students. The iObservation® form provides the framework for the collection of teacher-performance data, and the MOU provides the framework for the analysis of these data. The 41 Domain 1 criteria survey a wide range of elements of teacher performance, and each criterion supports a detailed assessment of each of these elements. Due to its breadth and depth, the iObservation® form is a powerful data-collection tool. Domain 1 Datamarks Appendix A is a spreadsheet of Respondent's Domain 1 datamarks for the 2013-14 school year. Four observers conducted 18 observations during which they entered a total of 102 datamarks. Assistant Principal Farr conducted 13 observations and issued 84 datamarks. Principal Almanzar conducted three observations and issued 14 datamarks. Two other AHS administrators each conducted one observation--the first two--and issued two datamarks each. The average score of Respondent's 102 datamarks was 1.799. His average on the seven observations and 54 datamarks before the PDP was 1.685, and his average on the 11 observations and 48 datamarks after the PDP was 1.927. The 102 datamarks covered 25 of the 41 Domain 1 criteria. Eleven criteria were observed only once or twice each: Criteria 3, 12, 13, 21, 32, 33, 34, and 41 (one observation) and Criteria 2, 17, and 30 (two observations). Nine criteria were observed six to nine times each: Criteria 6, 7, 15, and 24 (nine observations); Criterion 14 (eight observations); Criteria 18 and (seven observations); and Criteria 1 and 9 (six observations). The reliability of these 102 datamarks is undermined by major flaws in the iObservation® form and the analytical framework and Assistant Principal Farr and Principal Almanzar's incompetence, carelessness, and confirmation bias, all as detailed below. The distortions resulting from these deficiencies were amplified by the power of the iObservation® form in terms of its breadth and depth, so as to produce an unreliable IPS and, thus, Final Score. The following three sections discard and revise datamarks, so as to produce a minimally reliable IPS. Discarded and Revised Domain 1 Datamarks for Misapplication of Criteria Requirements With one exception,7 the criteria are the sole source of requirements imposed on a teacher by the iObservation® form. The items of Teacher Evidence are means by which a teacher may show that she is complying with a particular criterion. Confusion about the requirements of individual criteria arises from a lack of editorial consistency in stating the items of Teacher Evidence relative to their respective criteria. This inconsistency promotes user error in assessing the extent to which a teacher is implementing a criterion. For most criteria, the items of Teacher Evidence illustrate means by which a teacher may demonstrate compliance with the criterion to which the items relate. These items are typically characterized by language specifying activities or practices that exemplify means of demonstrating compliance with criteria, but do not themselves exceed the requirements of the criteria. For some criteria, the items of Teacher Evidence essentially restate the requirements of their criteria, typically in more general language that tracks the language of the criteria. These items operate as mandatory requirements, not illustrations. For some criteria, the items of Teacher Evidence purport to add new requirements by illustrating activities or practices that, in exceeding the requirements of their criteria, necessarily satisfy those requirements. For relatively few criteria, the items identify activities or practices that are completely irrelevant to their criteria, meaning that they are not even illustrative of means of satisfying their criteria. Further complicating matters, for some criteria, the items of Teacher Evidence combine more than one of these editorial approaches. The scope of this section of the recommended order is limited to discarding and revising datamarks for which the observer has revealed, by checking items of Teacher Evidence or by comments, a misunderstanding of the relationship of the items of Teacher Evidence to the criterion that the observer was assessing. Petitioner has trained its observers to check items of Teacher Evidence that are present during an observation of a particular criterion. Checking what is observed is intuitive to support relatively high datamarks for items of Teacher Evidence that are illustrative or mandatory. But checking what is missing is intuitive to support relatively low datamarks for items of Teacher Evidence that are mandatory. For some observers, checking what is missing may be intuitive to support relatively low datamarks for items of Teacher Evidence that purport to add requirements to their criteria. For particularly inattentive or inept observers, checking what is missing may be intuitive to support relatively low datamarks for items of Teacher Evidence that are clearly illustrative, even though the absence of an illustrative item logically does not preclude a relatively high datamark, if other evidence of compliance is present. In this case, checked items or comments reveal observer confusion in 30 datamarks covering 17 of the 25 Domain 1 criteria that were observed. The relationship of the items of Teacher Evidence to these 17 criteria is set forth in the following paragraphs. For Criterion 1, the five items divide into two sets, although the text does not so indicate. The first three items address a learning goal, and the last two items address a scale. The criterion requires a learning goal and a scale, so, if the items were purely illustrative, evidence of one item in the first set and one item in the second set would justify a higher datamark. But the correct use of these items of Teacher Evidence is complicated by their purported addition of requirements to Criterion 1. The first and fourth items require the posting of a learning goal and scale, respectively. Posting requires a writing, but Criterion 1 does not require that the learning goal or scale be written or posted. Posting a written learning goal or scale would be one way of meeting the criterion's requirement of providing a learning goal or scale, but the absence of a posting would not demonstrate noncompliance. The purported addition of "requirements" of a posted writing is harmless, as long as the observer understands that the criterion does not require a posted writing. The third and fifth items operate in the same fashion. These items purportedly require references to the learning goal and scale throughout the lesson. References throughout the lesson clearly would satisfy the requirement of providing the learning goal and scale, but references throughout the lesson exceed the requirements of the criterion, so such repeated references are not required. The first part of the second item also purports to add a requirement to Criterion 1. The first part of the second item requires that the learning goal is a clear statement of knowledge or information. The criterion requires only that the learning goal is clearly stated. A clear statement of knowledge or information as a learning goal is a clearly stated learning goal that exceeds the requirement of the criterion. Again, this purported addition is harmless, as long as the observer recognizes that the criterion does not require a clear statement of knowledge or information. The second part of the second item raises a different type of editorial treatment of an item of Teacher Evidence. Here, the item clearly prohibits something that is not prohibited by the criterion, so that noncompliance with the item is irrelevant. Leaving aside the issue of whether a learning goal could apply to an assignment, it could apply to an activity, such as learning how to conduct internet research, operate a scientific calculator, or utilize a usage manual. The potential for confusion is especially great when the iObservation® form cites an irrelevant item of Teacher Evidence, regardless of whether it is as a prohibition, as here, or, as is more common, as a requirement. For Criterion 2, the first two items of Teacher Evidence are general restatements tracking the requirements of the criterion. Because these items are not illustrative and no other means of satisfying the criterion appears to exist, the first two items are properly mandatory, not illustrative. However, the third item under Criterion 2, which is charting the progress of the entire class, is a means of tracking student progress and is thus merely illustrative. This editorial inconsistency requires the observer to understand that the presence of the first two items means a higher datamark, the absence of the first two items means a Not Using datamark, and the absence of either of the first two items means a lower datamark. The absence of the third item is irrelevant, but the significance of its presence depends on the status of the first two items. The editorial inconsistencies among the items of Teacher Evidence in Criterion 5 create similar confusion. The first item is illustrative, if the physical layout of a classroom can be organized to facilitate movement without featuring clear traffic patterns. If such a physical layout must feature clear traffic patterns, the first item is mandatory. The second item purports to add requirements by substituting access to "materials and centers" for the criterion's reference to facilitating "learning." Again, the organizing of a classroom to provide easy access to materials and centers illustrates one means of facilitating learning, but the absence of easy access to materials and centers would not justify a lower datamark. The third item is another example of an item's complete departure from the requirements of its criterion--this time in the form of an irrelevant requirement, rather than an irrelevant prohibition. The criterion covers only organizing. The third item covers decorating. Decorating8 is not organizing;9 these two activities have nothing to do with each other. The decorating of a classroom--here, with bulletin boards displaying student work--is not evidence of a criterion requiring organizing, so the presence or absence of decorations is irrelevant. For Criterion 6, the first item of Teacher Evidence is illustrative, but seems to add the requirement that the teacher identify the critical information at the start of the lesson. The criterion requires only that the teacher inform her students of critical information before presenting the information, so the first item illustrates one way of satisfying this criterion. The second item may be mandatory because it essentially restates the requirement of the criterion in general language, and the third item is illustrative. For Criterion 7, the second item is largely mandatory because it essentially restates the requirements of the criterion, ignoring its limitation of small groups to groups of "up to about" five students and ignoring its implied duration of small-group instruction for "the lesson," even though the criterion does not require the use of small-group instruction for the entire lesson. The first item adds an irrelevant requirement that the teacher establish routines for grouping. The criterion requires only that the teacher uses groups, not that she establishes routines for the use of groups, and the existence of established routines does not tend to prove her use of groups, only, perhaps, her readiness to use them. For Criterion 8, the eight items of Teacher Evidence are clearly illustrative. The specificity of the language of the items coupled with the obvious fact that these eight activities do not exhaust the collection of activities that could help students link what they know to new content would seem to preclude the misapplication of any of these items. For Criterion 9, the four items illustrate means by which a teacher may "chunk" her presentation into small parts; other means of doing so obviously exist. For Criterion 10, the two items, which are illustrative, purport to add a requirement of groups, but the criterion makes no mention of groups. For Criterion 14, the first item of Teacher Evidence requires that the teacher begin the lesson with a brief review. This item is illustrative, but seems to add a requirement because the criterion does not provide when during class the review must take place. The second item is illustrative. For Criterion 15, the two items of Teacher Evidence are mandatory requirements because they use general language to track the two components of the criterion: deepening knowledge and practicing skills. For Criterion 19, the lone item of Teacher Evidence seems to add new requirements to the criterion, which requires only that the teacher engage her students in practice activities to develop fluency whenever the content involves a skill, strategy, or process. The item adds that the practice activities must be massed and distributed--the criterion would allow any type of activity--and must be appropriate to the students' current abilities--the criterion does not address students' abilities. The failure to meet these requirements would thus signify nothing. For Criteria 18, 26, 28, 30, 32, and 33, the various items of Teacher Evidence are illustrative. From Assistant Principal Farr's checkmarks and comments, it is clear that he misapplied the requirements of various criteria in 22 of his 84 datamarks. There is sufficient information in his comments to revise 2 datamarks; the remaining datamarks must be discarded. Sometimes Assistant Principal Farr checked items that were absent, and sometimes he checked items that were present. He issued Not Using datamarks for criteria bearing checked items on November 5, November 20, January 17 and February 28, although, for the first three observations, he also issued Not Using datamarks for criteria bearing no checked items. It is reasonably clear that Assistant Principal Farr intended for these checkmarks to signify that items were absent. On November 20 and December 4, Assistant Principal Farr issued Developing datamarks, which were the highest datamarks that he issued in the first semester, for criteria with items that were checked. It is unclear whether Assistant Principal Farr was signaling why he issued a higher datamark or why he did not issue an even-higher datamark. To avoid an unreasonable likelihood of an unreliable observation, the Administrative Law Judge has discarded all of Assistant Principal Farr's datamarks of Not Using or Beginning through the February 28 observation that are accompanied by checked boxes, except for datamarks involving items of Teacher Evidence that essentially restate the mandatory requirements of their criteria. This results in the discarding of the following 15 datamarks: November 5--Criterion 18 (item is illustrative); November 20--Criterion 1 (item purports to add a requirement--a posted learning goal) and Criterion 30 (item is illustrative); December 2--Criterion 33 (item is illustrative); December 4-- Criterion 5 (item adds irrelevant requirement--decoration); Criterion 26 (item is illustrative); January 17--Criterion 6 (item is illustrative); Criterion 8 (item is illustrative); Criterion 9 (item is illustrative); Criterion 10 (item purports to add a requirement--groups); Criterion 19 (item purports to add a requirement--massed and distributed practice activities); Criterion 30 (item is illustrative); and Criterion 32 (item is illustrative); February 12--Criterion 18 (the absent item is illustrative); and February 28--Criterion 19 (item purports to add a requirement--massed and distributed practice activities). After February 28, Assistant Principal Farr no longer checked items of Teacher Evidence for which he assigned Not Using datamarks, and, where he did check items, he did so in connection with relatively high datamarks. The evidence is close, but it appears more likely than not that he changed his practice to conform to his training, rather than continued to check missing items to explain why he did not issue even-higher datamarks. Assistant Principal Farr entered only a few comments on his completed iObservation® forms. Some of them reinforce the misunderstandings noted above in connection with checked items, but others pertain to datamarks for criteria for which there are no checked items and reveal additional misunderstandings. Assistant Principal Farr's first comment reinforces the need to discard his already-discarded Not Using datamark in connection with Criterion 5 on the December 4 observation. The comment is that the "strategy is called for but not exhibited." As noted above, the item checked is the decoration of the classroom with bulletin boards displaying student work--a requirement that is not called for in the criterion. Assistant Principal Farr's only other comment on the December 4 iObservation® form confirms his Developing datamark for Criterion 28. Assistant Principal Farr's next comment is to Criterion 24 on the January 17 observation. He issued a Beginning datamark and checked the item requiring the teacher to notice when students are not engaged. This is an example of a mandatory item, so its checking would justify his low score. The comment asks how could Respondent scan the room to notice when students are not engaged and take action. Assistant Principal Farr then adds: "Tapping on the desk and telling students that they better get going or you would have to send them to someone else is not very encouraging." The datamark is justified because Respondent evidently did not notice that students were disengaged, but the last comment adds a requirement that Respondent's overt action be "encouraging," not tapping on the desk and telling them that Respondent might have to send them somewhere else like the office.10 Nothing in the language of this criterion supports Assistant Principal Farr's limitation of "overt action" to "overt encouraging action." He was simply not paying attention to what he was doing and either relied on his belief that Respondent generally was insufficiently positive with his students or vaguely recalled other Marzano criteria that require positive reinforcement. Another comment for this observation concerns Criterion 26, which is managing response rates. The comment is: "During the 30 minutes of my visit, only one of your 19 students participated in your lecture. How can you begin to incorporate this strategy into your instruction?" This comment justifies a lower datamark for Criterion 24, which requires the teacher to notice when students are disengaged and take overt action. But these generic comments do not justify a lower datamark for Criterion 26--specifically for failing to manage response rates. From the comment, there were no responses to manage. At least as likely, this lack of student engagement was due to a failure to use academic games (Criterion 25), use physical movement (Criterion 27), maintain a lively pace (Criterion 28), maintain intensity and enthusiasm (Criterion 29), use friendly controversy (Criterion 30), provide opportunities for students to talk about themselves (Criterion 31), present unusual or intriguing information (Criterion 32), or use some combination of these strategies. Assistant Principal Farr's selection of a criterion does not guarantee that it was "called for," as discussed in the next section. The same comment accompanies Assistant Principal Farr's Beginning datamarks for Criteria 28 and 32 and Not Using datamarks for Criteria 26 and 30. His datamarks for Criteria 30 and 32 have already been discarded. His datamarks for Criteria 26 and 28 must also be discarded to avoid an unreasonable likelihood of an unreliable evaluation. There were no responses to manage, and Assistant Principal Farr failed to supply any support for a finding that Respondent was failing to maintain a lively pace, which, as noted by the coaches, he tended to do. Assistant Principal Farr's next comment is for Criterion 14 on the February 12 observation. He assigned a Developing datamark for this criterion, which is for the teacher to engage the students in a brief review of critical information. The comment is: "In addition to engaging students in a brief review of content, how can you monitor the extent to which students can recall and describe previous content?" This comment acknowledges implementation of the activities, but without monitoring, so the datamark was properly Developing. Assistant Principal Farr's comment for Criterion 7 on the first February 18 observation, for which he assigned a Developing datamark, is: "Students were engage [sic] and really enjoyed this activity. However, students need to be taught how to work collaborate [sic] in their assigned roles so that they can get the most of the activity." Assistant Principal Farr's comment justifies the Developing datamark if Criterion 7 mandates the use of small-group instruction when presenting new information, even though the students were engaged and enjoying what was presumably direct instruction by lecture. For the reason explained in the next section, if a strategy could be used, it must be used for the duration of the activity to which it pertains. This comment, though, reveals that such an interpretation of "called for" may require the use of a Marzano-mandated strategy, such as small-group instruction, even though the students are engaged and enjoying the teacher's use of a Marzano-unapproved strategy, such as direct instruction, when presenting new information. Only 90 minutes later, Assistant Principal Farr returned to Respondent's class and reassessed Criterion 7. This time, he issued a Beginning datamark and commented: "Uses the strategy incorrectly or parts are missing. Students were told to ask the person next to them if they got stuck or ask the teacher. Putting students in groups would have been a more effective strategy." As noted above, one of the illustrative items for this criterion is organizing the students into small groups, such as "diads," which is a group of two persons.11 Telling students that they may confer with a neighbor is a form of grouping; the iObservation® form does not treat the moving of chairs as a condition precedent to grouping. The comment reveals that Respondent had grouped his students, so the Beginning datamark must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. Assistant Principal Farr's other datamark on this observation is also erroneous. He assigned a Not Using for Criterion 10, which is for the teacher, during breaks in the presentation of content, to "engage. . . students in actively processing new information." Assistant Principal Farr did not check either item of Teacher Evidence, but commented: "The activity called for grouping but it was not used. How can you begin to incorporate some aspect of this strategy in your instruction?" As discussed above, this criterion does not call for grouping. The items of Teacher Evidence purport to add grouping as a requirement, and this editorial inconsistency in illustrating evidence that exceeds the criterion's requirement has misled Assistant Principal Farr. The Not Using datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Assistant Principal Farr added a comment to his Not Using datamark for Criterion 19 on the February 28 observation. This datamark has already been discarded for the reasons noted above. But the comment reveals Assistant Principal Farr's haphazard approach to using the iObservation® form. For a criterion that requires the teacher to "engage. . . students in practice activities that help them develop fluency" when the "content involves a skill, strategy, or process," Assistant Principal Farr commented: "Teachers [sic] sitting at desk while students completes [sic] quiz. One student was had [sic] her head down while falling asleep. I asked her if she was not feeling well and she said that she was OK and started working again." The disengagement of a lone student from a practice activity does not merit a Not Using datamark for a criterion requiring a teacher to engage students in practice activities to develop fluency. The Not Using datamark must be discarded to an unreasonable likelihood of an unreliable evaluation. On his March 18 observation, Assistant Principal Farr issued a Not Using datamark for Criterion 2, which is tracking student progress. The comment, in part, is: "Students were not monitored to see where they were on the scale in relation to the learning goal." The only point at which a failure to monitor enters into this criterion is when issuing a Developing datamark. The Not Using datamark must be raised to Developing to avoid an unreasonable likelihood of an unreliable evaluation. On the same observation, Assistant Principal Farr's comment concerning Criterion 7 justifies his Not Using datamark for this small-group criterion. Likewise, his comments concerning Criteria 18 and 26 justify his Beginning datamarks for these criteria. On his April 11 observation, Assistant Principal Farr issued a Beginning datamark for Criterion 6, which is identifying critical information. His comment is: "Student was still confused after you gave the answer to a problem. How can you signal to student which content is critical versus non-critical?" For no apparent reason, Assistant Principal Farr has inferred that the student's confusion is due to Respondent's failure to signal what content is critical. From the comment, Assistant Principal Farr may have thought he was scoring Criterion 13, which is reflecting on learning. The Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Citing substantially the same comment about the student who remained confused after Respondent had solved a problem, Assistant Principal Farr on the April 11 observation issued another Beginning datamark for Criterion 14, which is reviewing content. This criterion requires only that a teacher engage her students in a brief review of content that highlights critical information. The comment does not suggest that Respondent was reviewing content when he answered a question posed by a student, who remained confused after hearing the answer. Again, the comment suggests that Assistant Principal Farr should have issued a datamark for Criterion 13. More interestingly, Assistant Principal Farr's assigning of two relatively low datamarks for the same "deficiency," even if the two criteria had applied, raises the issue of how observers choose which criteria to observe, which is discussed in the next section. Here, though, the Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. This analysis of Assistant Principal Farr's comments has resulted in the discarding of his datamarks for Criteria 26 and 28 on the January 17 observation, Criterion 10 on the second February 18 observation, and Criteria 6 and 14 on the April 11 observation, as well as raising two datamarks--the Beginning for Criterion 7 on the second February 18 observation to Applying and the Not Using for Criterion 2 on the March 18 observation to Developing. From Principal Almanzar's comments, it is clear that he misapplied the requirements of various criteria in 8 of his 14 datamarks. There is sufficient information in his comments to revise six datamarks; the remaining two datamarks must be discarded. On his April 3 observation, Principal Almanzar issued a Not Using datamark for Criterion 14, which is reviewing content. Although he did not check any items of Teacher Evidence, Principal Almanzar added extensive comments including that Respondent asked the students to review another teacher's presentation, which obviously encompasses the activity of reviewing. Several comments have absolutely nothing to do with this criterion. Additionally, Respondent added an extensive comment of his own to this observation, stating that he was reviewing critical information during the observation by collecting an IB practice exam question that reviewed material previously covered in the class. This Not Using datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. On his April 10 observation, Principal Almanzar issued a Developing datamark for Criterion 5, which is organizing the physical layout of the classroom. He checked the item involving classroom decorations, including bulletin boards featuring student work. Principal Almanzar's comment is: "The room is not rich in content, no student work, and no math posters on the wall." As discussed above, this item of Teacher Evidence is completely irrelevant to the criterion. The Developing datamark, which establishes implementation of other requirements of the criterion, must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. The same problem occurs with Principal Almanzar's Developing datamark for Criterion 6, which is identifying critical information. His comment is: "During several occasions the teacher stated to students 'you have to know this to pass the EOC.' However, at no time did the teacher say to students you need to know this 'specific information for the EOC.'" Principal Almanzar made a distinction without a difference, and, more importantly, he made a distinction that lacks relevance. Principal Almanzar checked the item that the teacher tells students to get ready for important information. The criterion does not require greater specificity than "a lesson or part of a lesson." Again, this Developing datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. The next item observed by Principal Almanzar on April 10 is Criterion 7, which is: "The teacher organizes students into small groups to facilitate the processing of new information." He checked the item that states: "Teacher has established routines for student grouping and student interaction in groups." Seizing on the absence of routines, Principal Almanzar's comment reveals his misunderstanding of the criterion: "Teacher gets students into groups, but does not establish rules for students to work together. Consequently, students work independently as they sit in a group formation." As noted above, the requirement of routines in the items of Teacher Evidence is not in the criterion. The Not Using datamark must be increased to Applying to avoid an unreasonable likelihood of an unreliable evaluation. Selecting another small-group criterion, Principal Almanzar entered a Not Using datamark for Criterion 15, which is: "The teacher uses grouping in ways that facilitate practicing and deepening knowledge." He checked both items of Teacher Evidence, but his comment is: "Teacher organizes students to work together and assigns problems for students to solve. Students sit in groups, but the majority of students work independently." Here, Principal Almanzar seems to be adding a requirement to one of the small-group criteria. The Not Using datamark must be raised to Applying to avoid an unreasonable likelihood of an unreliable evaluation. On his May 8 observation, Principal Almanzar issued a Beginning datamark for Criterion 6, which is identifying critical information. He did not check any items of Teacher Evidence, but his comment is: "Teacher said to students 'what is the measure of an adjacent angle?' How can you signal to students which content is critical versus non-critical?" Principal Almanzar has never taught math and cannot establish that the measure of an adjacent angle is critical. Any implication that a teacher must affirmatively enumerate, as to every bit of information taught in class, whether it is critical or noncritical is rejected as impracticable. The Beginning datamark must be discarded to avoid an unreasonable likelihood of an unreliable evaluation. For Criterion 14, which is reviewing content, Principal Almanzar assigned a Beginning datamark, checked the item that illustrates several specific strategies that a teacher might use to review information, and added a comment: "Teacher did not ask students to relate previous knowledge to content being reviewed. How can you engage students in a brief review of content that highlights the critical information?" The question merely restates the criterion as a question. The statement completely misses the point of the criterion, which requires only that the teacher "engages students in a brief review of content that highlights the critical information." The statement bears a resemblance to Criterion 20, which requires the teacher to engage the students "in revision of previous knowledge about content addressed in previous lessons." Principal Almanzar's evident inattentiveness requires that the Beginning datamark be discarded to avoid an unreasonable likelihood of an unreliable evaluation. Principal Almanzar's comments to Criteria 15, which is a small-group criterion, and 19, which is practicing skills, ask the same pleasantly encouraging question that, if machine- generated or -prompted, should remind the reader of the role of the iObservation® form as a professional-growth instrument: "How can you begin to incorporate some aspect of this strategy in your instruction?" But Respondent had already begin to use both strategies. In his April 10 observation, Principal Almanzar acknowledged that Respondent had used small-group instruction and had issued a Developing datamark for Criterion 19. And, if Respondent were to respond to the gentle prod of this question and "begin" to use these strategies, he needed a sense of urgency because, one week later, Principal Almanzar recommended to the Superintendent that Respondent be fired. Although these comments suggest carelessness on Principal Almanzar's part, they do not affirmatively discredit the datamarks assigned to Criteria 15 and 19. However, Principal Almanzar's comment for Criterion 19 adds: "Students were not grasping teacher's explanations." This criterion requires the teacher to "engage. . . students in practice activities that help them develop fluency." The comment implies that Respondent was doing that, but, at worst, was failing to monitor a majority of the students for the desired effect of this strategy. Principal Almanzar's Not Using datamark for Criterion 19 must be increased to Developing to avoid an unreasonable likelihood of an unreliable evaluation. This analysis of Principal Almanzar's comments has resulted in the discarding of his datamarks for Criteria 6 and 14 on the May 8 observation, as well as the revision of six datamarks: on the April 3 observation, the datamark for Criterion 14 has been increased from Not Using to Applying; on the April 10 observation, the datamarks for Criteria 7 and 15 have been increased from Not Using to Applying and the datamarks for Criteria 5 and 6 have been increased from Developing to Applying; and, on the May 8 observation, the datamark for Criterion 19 has been increased from Not Using to Developing. Discarded Domain 1 Datamarks for Disproportionate Observation of Small-Group Criteria An observer may assign a datamark only for a strategy that is "called for." If, under the circumstances, a strategy is not "called for," the observer must choose another strategy for assessment. The iObservation® form fails to define "called for," but permissible meanings of "called for" are that a strategy must or could have been used.12 An observer who reserves datamarks for strategies that must be used will have fewer opportunities to issue datamarks than an observer who issues datamarks for strategies that could be used. A strategy, such as small-group instruction when presenting new information, could be used more often and for longer duration than it must be used. Nothing in the iObservation® form indirectly supports either definition of "called for." But the MOU's statement that the Marzano criteria are mandatory and have displaced teacher judgment militates in favor of the definition that gives the Marzano criteria their widest reach. For this reason, "called for" means any strategy that could be used, meaning that observers have greater latitude in assigning Not Using datamarks. Observers have even greater latitude in another respect: the selection of criteria to observe. Neither the iObservation® form nor the MOU limits the discretion of an observer in selecting criteria for observation. When the iObservation® form is used to promote professional growth, homing in on a teacher's weaknesses may be a useful practice, but when the form is used to evaluate a teacher, the same practice presents a unbalanced portrait of the teacher by over-emphasizing her weaknesses. Combined with the vagueness of "called for," the unfettered discretion to select criteria for observation confers upon observers a unique power to shape observations and, thus, evaluations. The observer who fully exploits the latitude extended to him by these two omissions will generate observations that tell the reader increasingly less about the teacher and increasingly more about the observer, as he assumes the role of the "I" in "iObservation."® The iObservation® form and MOU support one limitation on the observer's selection of criteria for assessment. Because Dr. Marzano, Petitioner, and BTU have not weighted individual criteria in these documents, observers cannot assume this authority by disproportionately assessing certain criteria. Due to the large number of criteria relative to the number of datamarks that a teacher receives during a school year, it is impossible to require proportional observation on a per-criterion basis. This would unduly restrict the flexibility of observers, who, for instance, could not observe the same criterion a second time in a school year to see if the teacher had corrected a deficiency noted in the implementation of that strategy earlier in the school year.13 The limitation imposed on observers is on the cumulative over-representation14 of groups of related criteria. For present purposes, there is no need to discard datamarks of criteria that are within groups that are over-represented in observations unless the over-representation is material. Materiality is a function of the relationship of the over-represented datamarks to the remaining datamarks in terms of point values. Given the issues framed by a case of this type, the issue is whether observers have assigned relatively low datamarks to the criteria that are within groups that they have over-represented in their observations. Broadly speaking, the prominent groups of Domain 1 criteria are Criteria 6-13--presenting new information; Criteria 14-20--reviewing information; Criteria 24-32-- maintaining student engagement; and Criteria 4 and 33-39-- maintaining positive teacher-student relations. In this case, the third group of criteria was observed proportionately, but the first two groups were over-observed, and the fourth group was greatly under-observed.15 But the over-representation of datamarks for the first two groups has proved immaterial. After reviewing the scores and, where the record fails to support the lower scores, increasing them, the datamarks are not so low as to distort the overall evaluation process. The under-representation of datamarks for the fourth group has proved irrelevant.16 The same is not true for one group of three criteria: the small-group criteria, which are Criteria 7, 15, and 21.17 AHS administrators over-represented these criteria in their observations and assigned very low datamarks to these criteria. With few exceptions, the datamarks for these criteria are supported by the record,18 which is why a limitation on the observer's selection of these criteria is important to assuring a reasonable likelihood of a reliable evaluation. Criteria 7, 15, and 21, require small groups, respectively, when presenting new knowledge, practicing or deepening knowledge, and helping students who are working on complex tasks that require them to generate and test hypotheses.19 Respondent testified that he engaged in small-group instruction once every three weeks. Mr. O'Brien testified that Respondent grouped students on Thursdays. But, even if Respondent increased his use of small-group instruction in response to the repeated urgings of Ms. Spadaro and Ms. Kal Sander, nothing in the record suggests that he engaged in small-group instruction much of the time during the 2013-14 school year. In turn, AHS administrators assessed the small-group criteria greatly in excess of their representation in the iObservation® form. The three small-group criteria constitute only about 7% of the 41 criteria, but they generate almost 19% of the datamarks--19 of 102 datamarks. The over-observation of the small-group criteria was material. These three criteria generate almost 45% of the Not Using datamarks--17 of 38 datamarks. For this reason, the small-group criteria generated very low scores: nine datamarks of Criterion 7 averaged 1.278 points, nine datamarks for Criterion 15 averaged 1.0 point, and one datamark for Criterion 21 was 1.0 point. Due largely to the analytical framework provided by the MOU, the effect of Not Using datamarks is dramatic on a teacher's Final Score. To earn the minimum Effective rating of 2.5 points, without any Innovating ratings, a teacher must obtain three Applying datamarks for every Not Using datamark to reach the threshold of Effective. A teacher receives a minimum of 25-35 datamarks over the course of a school year. Assuming 30 datamarks without any Innovating datamarks, once a teacher receives eight Not Using datamarks, she cannot earn an Effective score. Here, with 102 datamarks, if none is Innovating, a teacher with more than 25 Not Using datamarks cannot attain an average of 2.5 points. The requirement of proportionality is an imperfect device,20 but provides some limit on an administrator's ability to distort the evaluation process by ducking into a teacher's classroom to confirm that she still is not using certain strategies and quickly accumulating numerous Not Using datamarks. To some extent, Assistant Principal Farr did just this regarding the three small-group criteria. On February 18, 2014, he conducted two snapshot observations for Criterion 7 only 90 minutes apart, scoring during these observations only one other criterion, Criterion 10, which he erroneously believed also was a small-group criterion.21 More generally, although less dramatically, the same thing happened repeatedly with respect to the small-group criteria. AHS administrators conducted nine snapshot observations and two informal observations involving no more than two criteria, so as, in this respect, to resemble snapshot observations. During these 11 focused observations, the administrators issued 26 datamarks, of which 14 were Not Using datamarks. Focused observations thus accounted for about 22% of the total datamarks, but about 37% of the Not Using datamarks. For the three small-group criteria--again, representing about 7% of the total criteria--the AHS administrators conducting focused observations issued 7 datamarks, or about 27% of the datamarks that they issued in focused observations and half of the Not Using datamarks that they issued in focused observations. AHS administrators observed one or more of these small-group criteria in six of the 11 focused observations. Prior to the discards and revisions set forth in the preceding section,22 as noted above, the three small-group criteria accounted for 19 of the 102 datamarks, or nearly 19%. If the AHS administrators had limited their observations of these three small-group criteria to their proportional share of the 41 Domain 1 criteria, they would have generated no more than about eight datamarks for these three criteria, instead of 19. An approximate proportionality will suffice, so ten of the Not Using datamarks for Criteria 7 and 15 must be discarded to provide a reasonable likelihood of a reliable evaluation. Revised Domain 1 Datamarks for Failure to Prove Datamarks by Greater Weight of the Evidence Petitioner must prove by a preponderance of the evidence that Assistant Principal Farr or Principal Almanzar saw or did not see activities to support the datamarks on their iObservation® forms. Notwithstanding the language of the MOU promising a more comprehensive process for the evaluation of a teacher,23 at present, the Final Score is the sole determinant of the employment decision, so the burden placed on Petitioner is merely to prove that the observers saw and did not see what they reported directly in their comments or checked items of Teacher Evidence or implicitly based on the datamarks. Petitioner's task is further eased by the fact that, except for Respondent, the other sources of opposing evidence--Respondent's coaches and teaching colleagues--were rarely, if ever, in the classroom during the observations, which were not recorded for review by third parties. The evidentiary bar thus is not exceptionally high, but even a low bar must be cleared. For the datamarks revised in this section, Petitioner's proof is insufficient to overcome the opposing evidence largely due to the impression left with the Administrative Law Judge that the observations conducted by Assistant Principal Farr and Principal Almanzar were tainted by incompetence, carelessness, and confirmation bias. It would seem that ineptitude in using the iObservation form could not impede an administrator's observing accurately what a teacher is doing and not doing during an observation. However, due to its breadth and depth, the iObservation® form imposes considerable burdens upon an observer. The record does not reveal any protocol used by Assistant Principal Farr or Principal Almanzar when observing Respondent. It is thus unclear whether the administrator first selected a criterion and then observed a class to see if the criterion was "called for," or if the administrator first observed a class to determine the activity, such as introducing or reviewing information, and then selected a criterion for observation. Clearly, some criteria, such as Criterion 24, which is noticing when students are not engaged and taking overt action, would spontaneously emerge as "called for," so that they would less likely be preselected for assessment. An observer needs considerable familiarity with the iObservation® criteria to conduct an efficient, accurate observation. A teacher might be chunking content under Criterion 9 and managing response rates under Criterion 26 when students suddenly disengage, requiring her to take other overt action, under Criterion 24, which could entail academic games or physical movement under Criteria 25 and 27, respectively--all within one or two minutes. Even in a less dynamic interval, a teacher might be identifying critical information under Criterion 6, previewing new content under Criterion 8, chunking content under Criterion 9, engaging the students in processing information under Criterion 10, and engaging students requiring elaborative inferences under Criterion 11--all within a span of several minutes.24 In varying sequences, an observer must select one or more criteria to assess; if he is not sufficiently familiar with the iObservation® form, review the requirements of the criterion or criteria; observe what the class is doing at the moment and, in some cases, place this moment in the context of what presumably has already taken place, possibly before the start of the observation; observe what the teacher is doing and not doing; observe the students' responses; analyze the teacher's acts and omissions in the context of all 41 Domain 1 criteria; and document his findings in the form of one or more datamarks, possibly one or more comments, and possibly one or more checked items of Teacher Evidence, while, for Assistant Principal Farr, trying to keep straight if checks signify the presence or absence of an activity. These hypotheticals suggest the range of tasks that an observer must perform, but do not so much suggest the span of time in which he must perform these tasks. In three of the four formal observations conducted by Assistant Principal Farr, he assigned 49 datamarks--slightly over the upper range of 45 datamarks for three formal observations. In one comment, noted above, Assistant Principal Farr mentioned 30 minutes as the duration of one of these formal evaluations. If the other two formal observations were of the same duration, this means that he was assigning a datamark every two minutes, which would have necessitated that Assistant Principal Farr maintain a lively pace while entering nearly half of the datamarks that Respondent received for 2013-14. This also would have necessitated that Assistant Principal Farr have much greater dexterity in using the iObservation® form than he has demonstrated in this case. The odds of missing elements of what the teacher was doing are fairly high. The lack of skill in using the iObservation® form demonstrated by Assistant Principal Farr and Principal Almanzar--but especially Assistant Principal Farr, given the time pressures to which he subjected himself in three formal observations--thus reduces the weight to be assigned to their datamarks as descriptions of what they saw or did not see. There is also ample evidence of carelessness by both administrators in discharging their duties in this case, as detailed above. Inattention to the details of the iObservation® form suggests inattention to the situations confronting a teacher in the classroom, the strategies that she employs in response to those situations, and the effect of these strategies on her students. Respondent argues for an inference of bias in the form of a conspiracy between Assistant Principal Farr and Principal Almanzar, if not others, to gain the dismissal of Respondent. The evidence offers little support for Respondent's conspiracy template. Among other things, schemers presumably would have paid more attention to the details of their conspiracy. However, it is impossible also to rule out confirmation bias25 on the part of Assistant Principal Farr and Principal Almanzar. An occasional misreading of the confusing items of Teacher Evidence signifies nothing, but one-quarter of Assistant Principal Farr's datamarks and over half of Principal Almanzar's datamarks were bed on their misreading of the requirements of the criteria that they were assessing. This record signifies incompetence, carelessness ripening into recklessness, and possibly confirmation bias. Neither incompetence nor inattentiveness would seem to have been involved in Assistant Principal Farr's failure to give effect to the MOU requirement that he make "every effort" to allow for a reasonable amount of time for growth between observations. Even if he were ignorant of this provision of the MOU, Assistant Principal Farr should have been guided by basic notions of fair play, but was not. Instead, Assistant Principal Farr conducted three observations totaling 30 datamarks, or about 29% of all of the datamarks for the school year, in a span of seven school days--November 20, December 2, and December 4--averaging, respectively, 1.917, 1.0, and 2.278 points.26 And, as noted above, on one day, he conducted focused observations of small-group criteria 90 minutes apart. Principal Almanzar's failure to align the Marzano-based deficiencies in the PDP with a Marzano-based level of implementation, rather than "mastery," is easily explained by inattentiveness and unfamiliarity with the iObservation® form. But his failure to inform timely the coaches of Respondent's specific deficiencies suggests that Principal Almanzar may have been going through the motions of complying with a procedural requirement, not providing Respondent with targeted assistance. Assistant Principal Farr and Principal Almanzar also distorted the observation data and, thus, the evaluation process by disproportionately assessing the small-group criteria, often in focused observations. They knew that these observations would produce a large number of Not Using datamarks, which would produce a low IPS and Final Score. Respondent posed two main problems to his administrators: primarily, lots of poor grades and, secondarily, lots of disciplinary referrals. Each of these practices presumably generated lots of complaints, which meant considerable demands on the administrators' time. Respondent appears to lack the skills or inclination to work on his relationship with his superiors. At the same time, Petitioner adopted the Marzano mandates for teaching and Marzano method for evaluating teachers. It is unclear whether the two AHS administrators appreciated the depth and breadth of the iObservation® form, but they likely understood, as noted in the MOU, that Marzano mandates had displaced a considerable amount of teacher judgment in terms of teaching methods. Responsible for conducting the observations of Respondent,27 Assistant Principal Farr and Principal Almanzar could have approached their task with one of three mindsets. They could have been predisposed to share Respondent's opinion that the poor grades and disciplinary referrals were due to a lack of student motivation and, for more advanced classes, their failure to assign students properly. This possibility can be dismissed. Assistant Principal Farr and Principal Almanzar could have been predisposed to think that the poor grades and disciplinary referrals were due to Respondent's poor teaching practices. If so, the new Marzano-based evaluation process presented a good opportunity to document Respondent's deficiencies. Or Assistant Principal Farr and Principal Almanzar could have had no predispositions as to the cause of the poor grades and disciplinary referrals and seen the new Marzano-based evaluation process as a good opportunity to assess Respondent's teaching performance. Between them, Assistant Principal Farr and Principal Almanzar entered 98 datamarks. Of these, 30 datamarks were erroneous to the detriment of Respondent and 10 Not Using datamarks were discarded due to material disproportionality to his disadvantage. Of the remaining 62 datamarks, not a single one is erroneous to the benefit of Respondent, nor are there any datamarks that are materially disproportionate to his advantage. The impression that these administrators have left is that their uneven performance in this case is due, not merely to carelessness or ineptitude, but also confirmation bias, as each administrator tended to see and not see evidence that confirmed his knowledge that Respondent was a bad teacher. Thus, for the datamarks discussed below, the weight to be assigned to the direct or indirect reports of Assistant Principal Farr and Principal Almanzar of what they saw or did not see is insufficient to satisfy Petitioner's burden. Where datamarks, including some that have been discarded above, are increased to Applying or, for one criterion, Innovating, the required element of student monitoring is inferred from Respondent's recent record of student academic achievement and other sources. Although Assistant Principal Farr missed one instance of small-group instruction, as mentioned above, Petitioner generally proved that small-group instruction was not present when the observers issued Not Using datamarks for the three small-group criteria. To sustain these datamarks, the class must have been engaged in one of the three activities that triggers small-group instruction. It is fairly easy to notice when a class is interacting with new knowledge or practicing knowledge. On the other hand, nothing in the record persuades the Administrative Law Judge that Assistant Principal Farr is capable of recognizing or, if capable, bothered to recognize when math students were working on complex tasks that required them to generate and test hypotheses. His Not Using datamark for Criterion 21 on the January 17 observation is thus discarded to avoid the unreasonable likelihood of an unreliable evaluation. On December 2, Assistant Principal Farr assigned a Not Using datamark for Criterion 33, which is demonstrating "withitness." Ms. Kal Sander's email of January 29, 2013, and Ms. Spadaro's email of April 26, 2013, both commend Respondent for his "withitness." Although Assistant Principal Farr's Not Using datamark for this criterion has already been discarded, it must be replaced with an Applying datamark to avoid the unreasonable likelihood of an unreliable evaluation. Respondent testified that he has long "chunked" his material to facilitate his students' learning, as required by Criterion 9. Ms. Kal Sander noted this in her email of February 14, 2013. The items of Teacher Evidence exclusively concern chunking the presentation, but the criterion does not preclude chunking the content. Based on his knowledge of the content of standardized tests and considerable experience teaching math, Respondent has done just that. His average score on six datamarks, as originally issued by the AHS administrators, was 2.417, so they had recognized his relative strength using this strategy. When compared to the strategies set forth in the items of Teacher Evidence, Respondent's "chunking" appears to be a new way of conforming to this criterion, thus entitling him to Innovating datamarks. The Developing datamark of April 10 has already been sustained. But the five remaining original datamarks, including the Beginning datamark on January 17 that has already been discarded, must be raised to Innovating datamarks to avoid the unreasonable likelihood of an unreliable evaluation. As explained by Respondent and corroborated by Ms. Spadaro's emails of February 20 and April 16, 2013, a core practice of Respondent is reviewing content, which is Criterion 14, but his average score for eight datamarks for this criterion is only 2.188. Principal Almanzar's Not Using datamark for Criterion 14 on April 3 has already been raised to Applying. Assistant Principal Farr's Developing datamark on February 12 has already been sustained. The remaining six datamarks, including those previously discarded, must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. Respondent's teaching practices have long included tracking student progress, which is Criterion 2, even to the point of hectoring his students about their lack of progress. As explained by Respondent and corroborated by Ms. Spadaro's emails of February 15 and March 21, 2013, Respondent also adopted her suggestion of the four-finger method of tracking student understanding. Respondent's two Not Using datamarks for Criterion 2 on observations dated March 18 and May 2--the former of which was already raised to a Developing--must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As explained by Respondent and corroborated by Ms. Kal Sander's email of February 14, 2013, Respondent has long provided clear learning goals and scales, which is Criterion 1, as part of his careful preparation of students for standardized testing. The poor alignment of all five items of Teacher Evidence to Criterion 1, as discussed above, invites erroneous scoring of this criterion. The six datamarks originally assigned for Criterion 1, including the Not Using datamark of November 20, must be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. For largely the same reasons, the seven datamarks originally assigned for Criterion 6, which is identifying critical information, must also be raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. This excludes the datamark of Applying on May 2 and the datamark of Developing on April 10 that was already raised to Applying, but includes the datamarks of January 17, April 11, and May 8 that were previously discarded. Considerable evidence establishes that Respondent maintains a lively pace in class, which is Criterion 28, sometimes perhaps at the cost of not leaving enough time to ensure that his students are always keeping up with him. The Developing datamark on December 4 has been sustained, but the remaining three of four original datamarks, including the Beginning datamark on January 17 that has already been discarded, must be increased to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As set forth in this section, 30 datamarks have been revised and one has been discarded. Nineteen of these revisions and the lone discard are to datamarks not previously discarded or revised in the preceding two sections; the remaining revisions are to datamarks that were previously discarded to revised in the preceding two sections. Conclusion as to Domain 1 Datamarks The net result of the discards and revisions detailed in the preceding three sections is the discard or increase of 61 datamarks. As discarded and revised, the remaining datamarks are set forth in Appendix B. As reflected on Appendix B, Respondent's average IPS is 2.532, which is the lowest score that avoids the unreasonable likelihood of an unreliable evaluation. iObservation® Form: Domains 2-4 Domains 2-4 Criteria The iObservation® criteria for Domains 2 through 4 that were assessed are set forth below. 42. Effective Scaffolding of Information within Lessons Within lessons, the teacher prepares and plans the organization of content in such a way that each new piece of information builds on the previous piece. Planning Evidence Content is organized to build upon previous information Presentation of content is logical and progresses from simple to complex Where appropriate, presentation of content is integrated with other content areas, other lessons and/or units The plan anticipates potential confusions that students may experience Teacher Evidence When asked, the teacher can describe the rationale for how the content is organized When asked, the teacher can describe the rationale for the sequence of instruction When asked, the teacher can describe how content is related to previous lessons, units or other content When asked, the teacher can describe possible confusions that may impact the lesson or unit. 44. Attention to Established Content Standards The teacher ensures that lesson and unit plans are aligned with established content standards identified by the district and the manner in which that content should be sequenced. Planning Evidence Lesson and unit plans include important content identified by the district (scope) Lesson and unit plans include the appropriate manner in which materials should be taught (sequence) as identified by the district Teacher Evidence When asked, the teacher can identify or reference the important content (scope) identified by the district When asked, the teacher can describe the sequence of the content to be taught as identified by the district 55. Promoting Positive Interactions with Colleagues The teacher interacts with other teachers in a positive manner to promote and support student learning. Teacher Evidence The teacher works cooperatively with appropriate school personnel to address issues that impact student learning The teacher establishes working relationships that demonstrate integrity, confidentiality, respect, flexibility, fairness and trust The teacher accesses available expertise and resources to support students' learning needs When asked, the teacher can describe situations in which he or she interacts positively with colleagues to promote and support student learning When asked, the teacher can describe situations in which he or she helped extinguish negative conversations about other teachers Seeking Mentorship for Areas of Need or Interest The teacher seeks help and input from colleagues regarding specific classroom strategies and behaviors. Teacher Evidence The teacher keeps track of specific situations in which he or she has sought mentorship from others The teacher actively seeks help and input in Professional Learning Community meetings The teacher actively seeks help and input from appropriate school personnel to address issues that impact instruction When asked, the teacher can describe how he or she seeks input from colleagues regarding issues that impact instruction Mentoring Other Teachers and Sharing Ideas and Strategies The teacher provides other teachers with help and input regarding specific classroom strategies and behaviors. Teacher Evidence The teacher keeps track of specific situations during which he or she mentored other teachers The teacher contributes and shares expertise and new ideas with colleagues to enhance student learning in formal and informal ways The teacher serves as an appropriate role model (mentor, coach, presenter, researcher) regarding specific classroom strategies and behaviors When asked, the teacher can describe specific situations in which he or she has mentored colleagues Adhering to District and School Rules and Procedures The teacher is aware of the district's and school's rules and procedures and adheres to them. Teacher Evidence The teacher performs assigned duties The teacher follows policies, regulations and procedures The teacher maintains accurate records (student progress, completion of assignments, non-instructional records) The teacher fulfills responsibilities in a timely manner The teacher understands legal issues related to students and families The teacher demonstrates personal integrity The teacher keeps track of specific situations in which he or she adheres to rules and procedures Participating in District and School Initiatives The teacher is aware of the district's and school's initiatives and participates in them in accordance with his or her talents and availability. Teacher Evidence The teacher participates in school activities and events as appropriate to support students and families The teacher serves on school and district committees The teacher participates in staff development opportunities The teacher works to achieve school and district improvement goals The teacher keeps track of specific situations in which he or she has participated in school or district initiatives When asked, the teacher can describe or show evidence of his/her participation in district and school initiatives Domains 2-4 Datamarks The definitions of the Developing and Applying datamarks for Domains 2 through 4 are different for each criterion and are provided as needed below. The remaining definitions are: Not Using: The teacher makes no attempt to perform this activity Beginning: The teacher attempts to perform this activity but does not actually complete or follow through with these attempts Innovating: The teacher is a recognized leader in helping others with this activity The criteria within Domains 2 through 4 are unlike Domain 1 criteria because they span an extended period of time--here, nearly the entire school year--rather than the period of an observation. Most, if not all, of the items of Teacher Evidence for criteria in Domains 2 through 4 contemplate an exchange between the teacher and the administrator to inform the administrator's datamark for these criteria. Criteria 42 and 44 also contemplate that the administrator will examine the teacher's planning materials to inform his datamarks for these criteria. Assistant Principal Farr issued all of the datamarks for the criteria within Domains 2 through 4. There is no evidence of any exchange of information or examination of planning materials. Instead, Assistant Principal Farr apparently drew upon his general knowledge of Respondent when entering these datamarks in a span of six school days about six weeks before the end of the school year. The failure to inform these determinations in the manner provided by the iObservation® form undermines the reliability of all of the datamarks for these criteria. There is also apparent inconsistency among certain datamarks. On April 29, Assistant Principal Farr issued Developing datamarks for Criteria 58 and 60 without comments and without checking any of the items of Teacher Evidence. The next day, Assistant Principal Farr issued datamarks of Not Using for Criterion 58 and Beginning for Criterion 60. Although he did not check any items, Assistant Principal Farr added comments. The comment for Criterion 58 is: "Does not contributes [sic] to new ideas to enhance student learning in formal or informal ways." The comment for Criterion 60 is: "The teacher attempts to perform activity but does not actually complete or follow through with these attempts; shows up to meetings (PLC) but does not contribute." Given that the second set of datamarks cover the same span covered by the first set of the datamarks, plus one day, these four datamarks collectively make no sense, so all four datamarks are discarded to avoid an unreasonable likelihood of an unreliable evaluation. On April 30, Assistant Principal Farr also issued Not Using datamarks for Criteria 55 and 59 and Beginning for Criterion 57. The comment for Criterion 55 is: "Comments during meetings are not negative [sic] and does [sic] not contribute to teaching and learning." The items of Teacher Evidence for this criterion require an analysis of indicators of the extent to which a teacher interacts with other teachers to promote learning. This was not done. If Respondent's negative comments were directed toward another teacher, as Assistant Principal Farr implies, but does not state, such comments would not necessarily preclude a higher datamark without consideration of Respondent's other relevant activities. Most likely, this datamark reflects Assistant Principal Farr's opinion of Respondent's behavior at a recent teacher meeting, nothing more, so it must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. The comment for Criterion 57 is: "Does not seek out help from academic coaches from [AHS] and does not show appreciation for their efforts and assistance." Gratitude is not an element of this criterion, nor is it mentioned in the items of Teacher Evidence, but it signals that Assistant Principal Farr has based a lower datamark on Respondent's lack of appreciation for the efforts of Ms. Spadaro, Ms. Kal Sander, and Mr. O'Brien. Assistant Principal Farr has selected a criterion that he should not have selected. Respondent's time has been filled with assistance from coaches. Under the circumstances, his failure to request more assistance is justified and renders this criterion unsuitable for assessment. For the reasons set forth in the preceding two paragraphs, the Beginning datamark for Criterion 57 must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. The comment for Criterion 59 is: "Does not fulfill responsibilities in a timely manner with regards to emails from administrator." Again, Assistant Principal Farr appears to have reduced this criterion to one failing--possibly, a lone instance of a failure of Respondent to reply, or to reply timely, to an email, probably from Assistant Principal Farr or Principal Almanzar. The Not Using datamark for Criterion 59 must be discarded to avoid the unreasonable likelihood of an unreliable evaluation. Seven minutes after entering the Not Using datamark for Criterion 59, Assistant Principal Farr himself seems to have discarded this datamark when he issued an Applying datamark for Criterion 59. Assistant Principal Farr checked two items of Teacher Evidence: performing assigned duties and fulfilling responsibilities in a timely manner. Given the high datamark, Assistant Principal Farr's checkmarks indicate that these items were present. Assistant Principal Farr added a one-word comment, "voting." Of course, Respondent does not challenge this datamark, so an exegesis of this cryptic comment is fortunately not called for, as in required. On May 7, Assistant Principal Farr issued Not Using datamarks for Criteria 42 and 44. He added no comments to these datamarks. The six items of Teacher Evidence for these criteria all bear the same preface: "When asked." The six items of Planning Evidence for these criteria require Assistant Principal Farr to examine Respondent's planning materials, which he did not do. Assistant Principal Farr checked none of these items. For these omissions alone, Assistant Principal Farr's datamarks may be discarded. However, there is ample evidence that Respondent earned Applying datamarks for Criteria 42 and 44. As for Criterion 42, Respondent consistently scaffolded information within lessons. As a subject, math requires scaffolding, both within an individual lesson and over longer periods of time. For Criterion 42, Applying requires: "Within lessons the teacher organizes content in such a way that each new piece of information clearly builds on the previous piece." In light of Respondent's recent history of positive student achievement, Assistant Principal Farr's saying that Respondent does not scaffold information does not make it so. The Not Using datamark for Criterion 42 is raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. Respondent consistently ensured that his lesson and unit plans were aligned with established content standards and sequencing guidelines or requirements. For Criterion 44, Applying requires: "The teacher ensures that lessons and units include the important content identified by the district and the manner in which that content should be sequenced." The Not Using datamark for Criterion 44 is raised to Applying to avoid the unreasonable likelihood of an unreliable evaluation. As revised, Respondent's three datamarks of Applying generate an average of 3.0 for Domains 2 through 4. 3. Application of Analytical Framework to Remaining, Revised Datamarks for Domains 1-4 Criteria The MOU calculates a teacher's Final Score based on her IPS, SDS, and DPS (if not treated as part of the IPS) with respective weights of 49%, 50%, and 1%. As noted above, Respondent received a 3.0 for his SDS and a 3.0 for his DPS, so the remaining task is to calculate his IPS and combine the three weighted scores for a Final Score. The Domain 1 score of 2.532 is weighted at 68% and the Domains 2-4 score of 3.0 is weighted at 32%. The result is 2.68 for Respondent's IPS. Combining the IPS, SDS, and DPS results in a Final Score of 2.84. Petitioner has thus failed to prove any performance deficiency for the 2013-14 school year. Count 3: Inefficiency or Incapacity Petitioner has failed to prove inefficiency or incapacity. The above-described analysis of his teaching performance establishes that the was Effective during the 2013-14 school year. Counts 1 and 2: Failure to Protect from Conditions Harmful to Learning and Not Engaging in Harassment or Discriminatory Conduct that Unreasonably Interferes with an Individual's Duties or Orderly Process of Education or Creates an Intimidating or Offensive Environment and Engaging in Behavior that Disrupts Student's Learning Environment or Colleague's Ability to Perform Duties Judging from Petitioner's proposed recommended order, Count 1 was intended to encompass a wide range of incidents, all minor in nature. Petitioner claims that Respondent lied about comments favorable to him made by one or more of his coaches. None of the comments warrants individual discussion; none was particularly important. The Administrative Law Judge has not determined whether these statements by Respondent were true or not because they are subordinate to the many issues present in this case. Some of these statements involve his claims that AHS administrators were biased against him. Given the combined possibilities that Respondent was telling the truth when making these statements, at least as to confirmation bias, or that Respondent believed he is telling the truth when making these statements, Petitioner has failed to prove that he has lied about his colleagues. Undoubtedly, Respondent had some unpleasant exchanges with AHS administrators. However, in the only such incident described in any detail, Respondent displayed restraint during the March 2013 encounter in which he overheard Ms. Kal Sander's frustrated dismissal of him. In that encounter, Respondent's characterization of Ms. Kal Sander's modeling was probably brusque, but appropriate, and part of a frank exchange between two professionals. Ms. Kal Sander over-reacted. Mr. O'Brien cited a lack of courtesy by Respondent. Mr. O'Brien's poor credibility as a witness disqualifies him as an arbiter of acceptable behavior, but even his account of this encounter does not justify a characterization of Respondent's behavior as harassment, discriminatory, intimidating, oppressive, or otherwise capable of reducing his colleagues' ability to perform their duties. More generally, the evidence as to all other matters does not rise to these levels. The most serious incidents encompassed by Count 1 are the occasional statements of Respondent to his class criticizing the administration or coaches. As to this matter, Mr. O'Brien's testimony has been rejected. On two occasions, Respondent made such comments about each of the two coaches, but did not make further such comments after being admonished by each coach. Petitioner's evidence concerning comments about AHS administrators falls short in two respects. First, it fails to establish the number of times that Respondent made such comments in front of his students or any such incident involving extended comments. Second, Petitioner produced no evidence of any student for whom these incidents were harmful to learning, disruptive to his learning environment, or harmful to the student's mental health. Significantly, the students were all high-school age, and the Administrative Law Judge finds an inadequate basis in the record to infer such harm or disruption. Just so it is clear to Respondent, this proof fails, not because such comments are acceptable when the students are high-school age, but for all of the reasons set forth immediately above. Counts 5-7: Failing to Work Diligently, Perform Prescribed Duties, and Comply with other Applicable Statutes, Rules, and Policies Petitioner has failed to prove that Respondent has failed to work diligently and faithfully help his students meet or exceed their annual learning goals or to perform any prescribed duties, or that he otherwise violated any provisions of law.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint and reinstating Respondent with his back salary. DONE AND ENTERED this 19th day of August, 2015, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2015.
The Issue Whether Respondent, Yvonne B. Eisenberg (Respondent), committed the violations alleged in the Amended Administrative Complaint filed on September 27, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a duly-constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Manatee County Public School District (School District). As such, it has the authority to regulate all personnel matters for the School District. See § 1001.32, Fla. Stat. (2012). Dr. Timothy McGonegal is the superintendent of the public schools for the School District. Dr. McGonegal has the authority to recommend suspension and/or termination of employees for alleged misconduct. At all times material to the allegations of this case, Yvonne B. Eisenberg was an employee of the School District assigned to teach profoundly mentally handicapped (PMH) students at Southeast High School. At all times material to the allegations of this case, Mr. Hall was an assistant principal at Southeast High School. Mr. Hall’s responsibilities included overseeing the exceptional student education (ESE) program at Southeast High School. Respondent’s PMH class fell within the purview of the ESE program. Ms. Toole, an ESE specialist at Southeast High School who is the ESE department chairperson, directly supervised Respondent’s class. PMH students require constant supervision and care. Respondent was assigned a full-time aide to assist her with the class. At times Respondent was assigned a second aide to help with students. Students in Respondent’s class were limited intellectually and physically. All required assistance with feeding, diaper changes, and mobility. It is undisputed that the challenges of managing Respondent’s classroom were daunting. No one disputes that Respondent’s daily work required physical and emotional strength. Cooperation between Respondent and others assigned to work in her classroom was important in order for the school day to run smoothly. Students in Respondent’s PMH class ranged in age and size. The eldest student could be 22 years old. It is undisputed that a 22-year-old might prove to be a physical burden for mobility and diaper changes. Respondent has received satisfactory performance evaluations in the past. Respondent is effective as an ESE teacher. Nevertheless, on November 12, 2010, Mr. Hall conducted a conference with Respondent to present, in writing, specific expectations for Respondent’s future job performance. Mr. Hall advised Respondent to follow the Code of Ethics and to speak civilly and professionally to staff and co-workers. On June 10, 2011, Mr. Hall gave Respondent a written reprimand for her actions during the 2010-2011 school year. More specifically, Mr. Hall cited Respondent’s failure to correct her unprofessional conduct toward staff and co-workers, and her willful neglect of duties. Among other items not pertinent here, Respondent was directed to complete sensitivity training and to promote a positive atmosphere in her classroom. Respondent denied the underlying facts that gave rise to the reprimand, but admitted to “yelling” at her aide. Speaking disrespectfully and loudly toward others was a chief component of Mr. Hall’s concern regarding Respondent’s behavior. On September 20, 2011, Respondent approached Mr. Hall at approximately 8:00 a.m. and asked to talk to him. Mr. Hall had a busy morning agenda but told Respondent he would talk to her later in the day. Respondent accepted the deferment of the talk and did not suggest an emergency situation that required more immediate attention. Later in the day, at approximately 10:30 a.m., Respondent returned to Mr. Hall’s office and asked for a meeting. In the interim between the first request for a talk and the second request, Respondent had sent Mr. Hall e-mails outlining a need for supplies, a request for input regarding an aide’s condition (whether the aide had been cleared to help lift students), and a need for gloves. Mr. Hall advised Respondent that she was not responsible for buying gloves and soap, and that those types of supplies for her students would be provided by the School District. Respondent claimed that a second aide was not needed in her classroom because she felt the two aides assigned to the PMH class were “against her.” Finally, Respondent asked about the status of any physical restrictions for a specifically named aide, Ms. Mitchell. Mr. Hall assured Respondent that the aide could lift as required by the job and had no restrictions. The meeting ended with Mr. Hall presuming he had addressed Respondent’s concerns. Mr. Hall also mentioned that Mr. Johnson, a substitute teacher at Southeast High School, could be made available to help lift Respondent’s students when needed. At approximately 1:15 p.m. the same day (September 20, 2011), Respondent approached Mr. Hall’s office with her fists clenched, her face red with anger, and yelled, “Am I going to get any help in here today?” Mr. Hall was surprised by the loud yelling and was taken aback for a moment. Since he did not understand her request he asked Respondent for a clarification. After a brief exchange, it became apparent to Mr. Hall that Respondent was upset because her students had not been changed all day and were sitting in dirty diapers. Mr. Hall maintained that Respondent had not clearly asked for assistance in changing the students during the two exchanges they had had during the school day. At that point, Respondent exited Mr. Hall’s office and slammed the door. Mr. Hall then telephoned an ESE classroom near Respondent’s room and directed Mr. Hubbard to report to Respondent’s classroom to assist her with changing the students. As Mr. Hall was completing that call, Respondent reappeared at his office and Mr. Hall asked her to step inside. At that time, Mr. Hall told Respondent she could not communicate with him as she had, that she must remain respectful and professional. Respondent then advised Mr. Hall that she was “pissed off.” Mr. Hall directed Respondent to return to his office at the end of the school day, and that Mr. Hubbard was in her classroom waiting to assist her with the diaper changes. Subsequently, Respondent told Ms. Toole that she yelled at Mr. Hall. Respondent maintains that the frustrations of her job and the events of the day supported her behavior. Moreover, Respondent asserts that her passion for the care of her students led to the emotional outburst. Respondent did not return to Mr. Hall’s office at the end of the school day. Mr. Hall reported the matter to his principal and to the District’s Office of Professional Standards. The Superintendent of schools recommended that Respondent receive a three-day suspension without pay for her conduct toward Mr. Hall and her failure to correct behaviors that had previously been identified. The requirement that Respondent show respect toward co-workers was not a new theme. Had Respondent exhibited patience and a professional demeanor, clearly articulated her need for assistance in lifting her students for diaper changes, and sought help in a timely manner (during any portion of the school day prior to 1:15 p.m.), she could have easily avoided disciplinary action. As soon as Mr. Hall was made aware of her need for lifting assistance, he directed additional help to Respondent’s classroom. Curiously, Respondent did not ask Ms. Toole, her ESE supervisor, for help.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be suspended for three days without pay. DONE AND ENTERED this 29th day of January, 2013, 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 29th day of January, 2013. COPIES FURNISHED: Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez and Hearing P.A. 201 North Franklin Street, Suite 1600 Post Office Box 639 Tampa, Florida 33602 Melissa C. Mihok, Esquire Kelly and McKee, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Dr. David Gayler, Interim Superintendent Manatee County School Board 215 Manatee Avenue West Bradenton, Florida 34205-9069 Dr. Tony Bennett, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner established “just cause” to discipline Respondent as a teacher.
Findings Of Fact Since 2004, Ms. Gardner has been employed by the Glades County School District as a teacher. During the 2009-2010 school year, she taught language arts to middle school students at West Glades School. During the relevant time period, Ms. Gardner worked under a professional service contract. A teacher's professional service contract automatically renews each year, and the contract can be terminated only by a showing of “just cause” or by performance deficiencies outlined in section 1012.34, Florida Statues. On April 16, 2010, Ms. Gardner was teaching language arts to seventh grade students. The students were supposed to be working on the language arts assignment. However, as Ms. Gardner walked around the class, she found some students working on their math homework. Frustrated by students doing math homework during her language arts class, Ms. Gardner confiscated the students' math work. In one instance, Ms. Gardner tore a student's math homework in half. One of the students whose math work Ms. Gardner confiscated was C.H. C.H. was generally described as a "good student." Ms. Gardner placed C.H.'s math workbook on a table near Gardner's desk at the front of the room, and redirected C.H. to the language arts assignment. At some point in the class, C.H. walked up to the front of the classroom and removed her math workbook from the table without Ms. Gardner's permission. As C.H. turned to walk back with her book, Ms. Gardner forcefully grabbed C.H.'s arm from behind. C.H. credibly testified that Ms. Gardner "grabbed my arm and turned me around and pushed me, and my books fell." C.H. started crying, and walked out of the classroom. As C.H. was leaving the classroom, Ms. Gardner told C.H. to return to her desk. C.H. stated that she was crying because she was "shocked." C.H. walked to the School's office, which is in the same hallway as Ms. Gardner's class. When she arrived at the office, C.H. was crying and visibly upset. The school guidance counselor took C.H. to speak with Principal Davis. Principal Davis found C.H. to be "distraught, crying, [and] shaking." Principal Davis spoke with C.H. to determine why the student was upset. C.H. informed Principal Davis that Ms. Gardner had become angry with C.H., and that Ms. Gardner had snatched C.H.'s books, grabbed her arm and pushed her. Based on the seriousness of the allegation, Principal Davis decided to immediately investigate C.H.'s claims by obtaining statements from C.H.'s classmates. After the language arts class, the next class for C.H. and her classmates was math taught by Ms. Wills. Before the math class began, Ms. Gardner came to Ms. Wills' class and gave her C.H.'s workbook and other students' papers. Ms. Gardner informed Ms. Wills that several of the students had been doing math homework when the students should have been doing their language arts work. Ms. Wills credibly testified that Ms. Gardner was "really upset" with students doing their math homework in her class, and appeared agitated. Shortly after Ms. Wills' class began, Principal Davis came to speak with the students. Principal Davis released Ms. Wills to take an early lunch, and then asked the students to write down anything "bothersome" that has happened in Ms. Gardner's class during the prior period. A majority of the students provided written statements that, in essence, corroborated C.H.'s story. After reviewing the students' statements, Principal Davis decided she needed to investigate further. Principal Davis met with Ms. Gardner and advised her about C.H.'s allegation that Ms. Gardner had inappropriately touched C.H. Because the investigation could result in discipline, Ms. Gardner decided to have a union representative present when she gave her statement. Further, Principal Davis informed Ms. Gardner that Ms. Gardner should go home until the investigation was completed. On April 21, 2010, Ms. Gardner gave her statement to Principal Davis. Ms. Gardner admitted to confiscating C.H.'s math notebook and calculator. Ms. Gardner indicated that later in the class C.H. walked across the room and retrieved her math notebook without permission. Ms. Gardner stated that she merely "touched" C.H.'s arm to redirect the student, and to put the math notebook back on the table. C.H. dropped the math notebook, and left the class. According to Ms. Gardner's interview, she did not forcefully grab C.H.'s arm. Ms. Gardner's testimony that she merely "touched" C.H.'s arm was consistent with the interview given to Principal Davis. The undersigned finds Ms. Gardner's characterization that she only "touched" C.H.'s arm without force not to be credible. Ms. Gardner's testimony concerning the events was often evasive on key points. For example, when asked if she recalled that C.H. was crying when leaving the classroom, Ms. Gardner indicated that she did not. Yet, in her deposition, taken just a week earlier, she testified that C.H. was crying when she left the classroom. Similarly, Ms. Gardner was evasive concerning questions about whether or not she acted in frustration or her understanding that the change in her contract status was the result of her touching C.H. As a result of Ms. Gardner's evasiveness, the undersigned found her credibility damaged. C.H. did not receive any physical injury from the incident on April 16, 2010. After completing her investigation on April 21, 2010, Principal Davis provided Wayne Aldrich, superintendent for Glades County School Board, with the following recommendation: As a result of a battery allegation by a student against Ms. Gardner, I have conducted a thorough investigation and found the allegation to be substantial. Ms. Gardner has been suspended with pay since the incident occurred on Friday, April 16. As a result, I have followed protocol required by the Florida Department of Education Office of Professional Practices and I am recommending the following action: Placement of a narrative of my investigation in her personnel file. Change of her contractual status to fourth year annual for 2010-2011 school year. Recommendation of termination if any further substantiated incidents of intentional physical contact with a student occur. I am requesting that she return to the classroom on Friday, April 23, 2010. Principal Davis testified that she considered the recommended change in Ms. Gardner's contract status from a professional service contract to a "fourth year annual contract" as less severe than termination or suspension. A "fourth year annual contract" would allow Ms. Gardner to return to professional service contract after being on an annual contract for one year. Principal Davis explained that Ms. Gardner had been evaluated as a high-performing teacher in the past, and it was hoped that she would return to that level after this discipline. At the end of the 2009-2010 school year, Principal Davis evaluated Ms. Gardner as "needs improvement." Under the comments section, Principal Davis noted "offer to wait for 2010 FCAT declined." There was no evidence tying this "needs improvement" evaluation to the incident that occurred on April 16, 2010. Superintendent Aldrich reviewed Principal Davis' investigation and recommendation. Based on his review, Superintendent Aldrich recommended that the School Board follow Principal Davis' recommendation, including the change in Ms. Gardner's contract status. Similar to Principal Davis, Superintendent Aldrich believed that the change in Ms. Gardner's contract status was less severe than a suspension. Superintendent Aldrich testified that a teacher should use physical force only "if the student was out of control and would be in a position to do physical harm to another student or themselves." However, no School Board Policy concerning the use of physical force was offered into evidence. The School Board, without notice to Ms. Gardner concerning her rights to an administrative hearing, adopted Principal Davis' recommendations. Ms. Gardner, subsequently, requested a formal administrative hearing and reconsideration of the School Board's decision. The School Board denied her request, finding that Ms. Gardner had waived her right to a hearing. Ms. Gardner filed an appeal. The Second District Court of Appeal found the following: It is undisputed that the Board did not give Ms. Gardner written notice of her right to seek administrative review and the time limits for requesting a hearing. Under these circumstances, the Board failed to provide Ms. Gardner with a point of entry into the administrative process before taking adverse action on her contract status. It follows that Ms. Gardner did not waive her right to request a formal hearing. Consequently, the appellate court reversed the School Board's decision, and remanded the case for further proceedings. Gardner v. Sch. Bd. of Glades Cnty., 73 So. 3d 314 (Fla. 2d DCA 2011). While Ms. Gardner's appeal was pending before the Second District Court of Appeal, Ms. Gardner worked under the fourth year annual contract for 2010-2011 school year. At the end of the 2010-2011 school year, Ms. Gardner's annual contract was not renewed. On remand, the School Board issued a May 16, 2012, letter, notifying Ms. Gardner of her rights to an administrative hearing. The School Board framed the issue as “to challenge the change in her contract status from a professional service contract for fourth year annual contract.” In the Joint Pre- Hearing Stipulation, the parties identified a factual issue for resolution as “[w]hether Gardner's physical contact with the student, C.H., constitutes “just cause” for discipline.” Further, the parties’ stipulation identified three disputed issues of law: 1) Whether the disciplinary options available to Petitioner included placement of Ms. Gardner on a fourth year annual contract status; 2) whether the placement of Ms. Gardner on fourth-year annual contract status was the appropriate discipline; and 3) whether the School Board's action in denying Ms. Gardner's request for a formal hearing in July 2010 renders the placement of Gardner on a fourth-year annual contract status for the 2010-2011 school year, and the non-renewal of her annual contract at the end of the 2010-2011 school year void ab initio. Before considering the legal issues identified by the parties, it is clear that the factual dispute of whether or not “just cause” exists must be addressed first. If “just cause” does not exist, then the issue of the penalty becomes moot. At the hearing, the parties presented testimony concerning the facts underlying the School Board's action here, and whether or not “just cause” existed to sanction Ms. Gardner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Glades County School Board enter a final order finding: The record contains insufficient evidence of "just cause" in order to discipline Ms. Gardner; and Pursuant to section 1012.33(6)(a), Florida Statutes (2010), immediately reinstate Ms. Gardner under her professional service contract and pay her back salary. DONE AND ENTERED this 11th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2013.
The Issue The issues are whether Respondent is guilty of incompetency, misconduct in office, or insubordination and, if so, whether Petitioner may suspend her without pay for 13 days.
Findings Of Fact Respondent has been employed by Petitioner for 26 years, but not for the period of 1997-2007. For the most part, Respondent has served as a classroom reading teacher, but she has also served as a district-level behavior specialist over ten years ago. Starting in the 2006-07 school year and through the 2011-12 school year, Respondent has been assigned as a tenth grade reading teacher at Blanche Ely High School. Respondent has never received any discipline on her educator's certificate. Until the 2011-12 school year, Respondent had never received any adverse employment action from Petitioner. All of her evaluations during her tenure at Blanche Ely bore satisfactory marks. For the first two years after Respondent returned to teaching in Petitioner's schools, she was on annual contract, but she regained a professional service contract starting the 2008-09 school year. Ms. Baugh's first year as assistant principal at Blanche Ely was the 2011-12 school year. Ms. Baugh previously served as assistant principal at Deerfield Beach High School and, before that, served for seven years as a classroom reading and English teacher. Among Ms. Baugh's responsibilities at Blanche Ely during the 2011-12 school year was to supervise the reading and English departments. Ms. Baugh was thus Respondent's direct administrator. Ms. Baugh's first observation of Respondent's class took place on September 28, 2011. Ms. Baugh remained in the classroom for 30 minutes. Ms. Baugh observed deficiencies in three areas. First, as to instructional planning, Respondent had failed to write the learning objectives on the board, so the students lacked a clear understanding of what they were supposed to learn from the lesson. By failing to introduce the students to the material properly, Respondent allowed students to become confused as to their tasks in reading an interview in a textbook. Lastly, Respondent broke the class into pairs to write an interview, without first providing an example of how to write an interview or giving the students a chance to practice the task, and some students did not understand their respective roles in the small groups. Second, as to lesson presentation, only a few students engaged in an assigned activity because Respondent had failed to provide pre-reading assignments or to explain the purpose of the reading assignment. In reviewing an activity in which students were to determine their areas of weakness, Respondent asked three students to share their three most common mistakes, but failed to determine whether the students actually knew their areas of weakness. Lastly, Respondent failed to write on the board the vocabulary, learning objectives, and specific tasks for the lesson. Third, as to subject-matter knowledge, Respondent consistently misidentified the FCAT 2.0 Reading Category Four as "Informational Text and Technology." It is "Information Text/Research Process." Respondent did not resist Ms. Baugh's comments during the post-observation conference, which took place on October 3, 2011, although Respondent incorrectly insisted that the FCAT section to which she had referred would cover technology. During the conference, Ms. Baugh informed Respondent that she would receive assistance in instructional planning, lesson presentation, and subject-matter knowledge. Ms. Baugh warned Respondent that she would be placed on a Performance Development Plan, if she failed to remediate these deficiencies. One day within two weeks of the October 3 conference, Respondent was instructing her class when a student asked a completely off-topic question about sex. Unable to regain control of the class, Respondent floundered, and other students seized the opportunity to ask inappropriate questions. In the ensuing verbal melee, answering questions posed to her, Respondent told the students that she first had had sex in college and it had been physically painful. As surprising as Respondent's lapse in judgment in answering these questions about her personal sex life, her explanations for why she did so were even more surprising. When asked during cross-examination why she would answer such obviously impertinent questions, Respondent twice, sitting silently, responded by snapping her fingers repeatedly. As though she were overwhelmed by the attorney's question, Respondent resorted to this gesture to indicate that the rapid- fire questions themselves had overwhelmed her. When finally coaxed to substitute language for gesture, Respondent lamely explained that a teacher cannot ever be viewed as inappropriate when she is honest with a child. After a conference on October 22, during which Respondent denied having made any sexual comments in class, Ms. Baugh informed Respondent, somewhat cryptically, "to no longer engage in nonacademic discourse and off-topic discussion by desisting students' negative behaviors." Doubtlessly, though, Respondent understood that she was not to do this again. Ms. Baugh's second observation of Respondent's class took place on November 9, 2011. As Ms. Baugh entered the class, the students were loudly demanding to know what they were supposed to be doing in class. In response to one student, Respondent replied that they should write the words on the overhead projector. The lesson was devoted to acquiring vocabulary through morphemes. While students were working on the lesson, a loud dialog took place between a student sitting near Ms. Baugh and another student sitting across the classroom. Their comments included profanity and disparaging remarks, including one statement referring to the boy on the other side of the classroom as "fat boy." Other students were leaving the classroom, some with and some without passes. Still other students were laughing and talking. Few students were doing the assigned work, but Respondent never intervened. When later asked why she had not intervened, Respondent told Ms. Baugh she did not want the behaviors to worsen and the situation to escalate. After working on the morphemes assignment, the students turned their divided attention to another assignment. Respondent neither explained the purpose of the new activity, nor did she introduce the new activity to the students. Instead, Respondent told the students merely to turn to a certain page and begin to work. Ms. Baugh observed deficiencies in instructional planning, lesson presentation, and behavior management. As to the last, Ms. Baugh told Respondent to stop negative behaviors and impose consequences for misbehavior. By this time, Respondent was receiving assistance from Ms. Powell, another reading teacher, and a retired principal. Later, Ms. Baugh assigned a second reading coach to try to help Respondent. Ms. Powell actually had started helping Respondent in 2009, at least in group sessions given for the benefit of all of the reading teachers. Clearly, though, by the 2011-12 school year, Ms. Powell was providing much more in-depth, individual assistance to Respondent. For instance, following an observation on October 28, Ms. Powell provided Respondent with a detailed Teacher Support Narrative. As to one observation, Ms. Powell noted how Respondent's board was cluttered, bore incorrect lesson objectives, and reflected the use of obsolete student-grouping criteria. Ms. Powell told Respondent to visit the classrooms of three other teachers to see how a board should be organized. But, by their next meeting, Respondent had not done so. Increasingly, though, Respondent was losing control of her classroom. Nearby teachers would enter Respondent's classroom to try to help restore order. Respondent later explained that she did not summon security because she had done so on a couple of occasions early in the school year, but security had never responded. On at least two or three occasions, when a student swore openly in class, Respondent's "strategy" was to repeat the word, in asking what he had said, such as "did you say 'fuck?' or "did you say 'bitch?'" Predictably, the effect of the teacher's repeating the swear word did not de-escalate the situation. On December 12, 2011, one student repeatedly directed a profanity toward Respondent in class and then seized Respondent's personal computer to access a grade program to change his grade. When the other students became disruptive too, another teacher had to enter the classroom to restore order. Because Respondent had not contacted security, the other teacher did so. Eventually, Respondent issued a referral only for the profanity, not the seizing of the computer, although this act compromised confidential information of other students. By letter dated January 17, 2012, Ms. Baugh issued Respondent a written reprimand for failing to manage the behavior of her students and allowing an unsafe learning environment to ensue. Ms. Powell witnessed the aftermath of a more serious incident that took place on December 15 in Respondent's classroom. At the start of class, a boy struck a girl in the head with a bottle. Although Respondent wrote a referral on the boy, she allowed both students to remain in the class for the duration of the period. As Ms. Powell entered the classroom, the period had evidently just ended, and the boy had just left the classroom, but she saw the girl, crying, on her cellphone talking to someone. She was asking the person with whom she had called to come to school to pick her up because a boy was bothering her, and her teacher was not doing anything about it. Instead of comforting the child, Respondent was busily walking around the classroom picking up papers. In response to questions from Ms. Powell, Respondent confirmed what had happened. When Ms. Powell asked if Respondent had called security, she said she had not because she was straightening up the room. Respondent then told the girl to proceed to her next class, but Ms. Powell told her not to leave the safety of the classroom until they knew the location of the boy. The girl left the classroom anyway, and Ms. Powell trailed her to make sure that the boy did not approach her. Just at that moment, the security guard arrived, so Ms. Powell could return to the classroom and admonish Respondent for, among other things, cleaning up the room before addressing the needs of the student who had been struck by the bottle. Later, in a conference, Respondent told Ms. Baugh that she had not called security because the fight had taken place just outside her classroom. Respondent added that she also knew that the boy did not bother girls, only other boys. Unmoved by Respondent's so-called explanations, by letter also dated January 17, 2012, Ms. Baugh issued a written reprimand for Respondent's failure to make a reasonable effort to protect a student from conditions harmful to her health or safety. Ms. Baugh's third observation of Respondent's class took place on January 5. The observation generally noted the same deficiencies as had been noted in the preceding two observations. This time, students laid their heads on their tables, and Respondent did not make them pay attention. The classroom was noisy, as students laughed and talked without being redirected. Two students even had headphones over their ears. When later asked about these matters, Respondent told Ms. Baugh that she did not address these behaviors because she did not want to delay instructional momentum. As was the case with the second observation, Ms. Baugh noted deficiencies in instructional planning, lesson presentation, and behavior management. In February 2012, Respondent experienced serious problems in assigning correct grades and less serious problems in proctoring exams and handling secure exam materials. Eventually, Respondent managed to combine her deficiencies in teaching and classroom management by improperly assigning low academic grades based on misbehavior. By letter dated March 21, 2012, which was later superseded by a letter dated March 22, 2012, Ms. Baugh advised Respondent that she was recommending a three-day suspension for the above-discussed performance deficiencies, which covered a period starting with the beginning of the school year and ending on the date of a predisciplinary meeting that had taken place on March 2. This is the proposed action that is the subject of DOAH Case No. 12-1924TTS. Two more classroom-trashings occurred in the two days following the March 21 three-day suspension letter. First, on March 22, Ms. Powell found Respondent trying to use an overhead in a fully lighted room. Because the image was washed out, Ms. Powell suggested that they turn out the lights, but provide some light by opening the blinds shading the top of the windows. Ms. Powell and Respondent adjusted the lighting accordingly. Ms. Powell left the classroom to help another teacher. Returning to Respondent's classroom 30 minutes later, Ms. Powell could hear a loud commotion as she approached the classroom in the hall. She heard falling desks and chairs and loud shouting. As Ms. Powell entered the classroom, it was pitch black. Ms. Powell turned on the lights and saw that the students had trashed the classroom, again flipping desks and chairs and strewing the floor with papers and books. Ms. Powell asked what was going on, and Respondent explained, with no sense of urgency, that the students kept turning off the lights. When Ms. Powell asked Respondent to identify the misbehaving students, Respondent mentioned the name of one student. The student declared that he was innocent, but Respondent said, "oh, yes, it was you." When Ms. Powell began to call this student's parents, Respondent interrupted and said she was not sure that he was the perpetrator. Second, on the afternoon of Friday, March 23, Ms. Powell noticed students running from the computer lab toward the vending machine area. Ms. Powell approached Respondent, who had just escorted her class (or most of it) from the computer lab back to her regular classroom. Respondent denied that there had been any trouble. Unconvinced, Ms. Powell walked over to the computer lab and found overturned desks, flipped chairs, the phone off the hook and on the floor, and papers and books strewn along the floor. Respondent entered the room and denied that her students had done this trashing of the lab. This denial, which Respondent repeated at hearing, is specifically not credited. Additionally, after receiving the March 21 three-day suspension letter, Respondent continued to grade student work arbitrarily. On one occasion, also on March 22, Ms. Powell noticed that two students with the identical answers had received very different grades for their homework--one getting a 100% and one getting a 50%. When Ms. Powell asked Respondent about the discrepant grading, Respondent replied that she had concluded that the student with the 50% had cheated. Respondent reasoned that the first student to have handed in her assignment had obviously done her own work, but the other student must have copied. When Ms. Powell pointed out the fallacy of this thinking and asked if Respondent had bothered to speak to either of the students, Respondent admitted that she had not. On another occasion, within the same week, Respondent reduced a student's grade on an assignment because of classroom misbehavior--again, improperly using an academic assessment to deal with misbehavior. The student demanded to know whether Respondent had reduced her grade because she is black. Resorting to her earlier strategy of repeating profanity, Respondent sarcastically repeated the question by saying that she had reduced her grade because she was black. Outraged, the student then became loud and aggressive with Respondent. This statement of Respondent, who is white, was insensitive, at the least. As noted by the reference in Petitioner Exhibit 44, this statement came shortly after the racially charged killing of Trayvon Martin. This exhibit states that Respondent tried to justify her reducing the student's grade because the student had taken a piece of yellow paper from Respondent's desk, without permission, and had written on it: "RIP Trayvon Martin." This is a good example of Respondent's missing a crucial teachable moment, instead insensibly clinging to her "technique" of repeating the student's utterance--for what purpose is never clear. The evidentiary record reveals some evidence of insubordination, considerable evidence of incompetency, and overwhelming evidence of misconduct in office. In some cases allowing and in other cases creating conditions in her classroom the precluded learning and endangered the safety of the students entrusted to her, Respondent's deficiencies in classroom management--exacerbated by her incompetency in the form of inefficiency and incapacity--are so serious as to impair her effectiveness in the school system. Considering the acts and omissions covered by the two written reprimands solely for the purpose of applying the progressive discipline policy of Petitioner, the evidentiary record amply supports a 13-day suspension, without pay, for the misconduct in office and incompetence proved in these cases.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent, without pay, for 13 days. DONE AND ENTERED this 12th day of February, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2013. COPIES FURNISHED: Melissa C. Mihok, Esquire Kelly and McKee, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Eugene K. Pettis, Esquire Brian Engel, Esquire Haliczer, Pettis, and Schwamm, P. A. One Financial Plaza, 7th Floor 100 Southeast 3rd Avenue Fort Lauderdale, Florida 33394 Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Dr. Tony Bennett Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
