The Issue Whether the District has proven, by a preponderance of the evidence, that there was just cause to dismiss Thomas Brown, consistent with the provisions of the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941), as amended, and Chapter 120, Florida Statutes.
Findings Of Fact The Respondent, Thomas Brown, was a teacher of instructional music in the Duval County School District (District). As part of the instructional personnel with the District, Brown was subject to be evaluated on an annual basis pursuant to the teacher assessment system. The purpose for evaluating teachers is to make certain that instruction is occurring in the classroom and that students are learning the required subject matter. The evaluation process also makes certain that student safety in the classroom is taken into consideration by the instructional personnel (teachers). The District uses the teacher assessment system to evaluate all of its teachers regardless of the subject matter they instruct. From the 1999-2000 and the 2000-2001 academic school years, Brown was a teacher at Andrew Jackson High School where Jack Shanklin (Shanklin) is principal. Shanklin has evaluated teachers annually since he became a principal 22 years ago. He uses the classroom observation instrument within the teacher assessment system to evaluate all of his teachers. At the beginning of the 2000-2001 academic year, Shanklin; Ms. Pierce, assistant principal; Dennis Hester, professional development cadre member; and Mr. Dudley took part in creating a success plan for Brown. A success plan is a course of action designed to prevent an at-risk teacher from getting an unsatisfactory annual evaluation by engendering professional improvement. Shanklin discussed the success plan with Brown before it was implemented. Brown did not have any objections to the plan. Shanklin evaluated Brown for the 2000-2001 academic school year during March of 2001. He based his evaluation results on the observations and written reprimands that he had issued to Brown throughout the 2000-2001 year. During the year, Shanklin observed Brown's classes. In preparation for a classroom visit, he reviewed Brown's lesson plans for October 18, 2000. Lesson plans describe the daily plan for instruction of the students on a particular day. Shanklin had previously directed Brown to turn in his lesson plans on a weekly basis in order to monitor Brown's progress because of his departure from planned lessons. Shanklin attempted to observe Brown in his classroom on October 18, 2000; however, neither the class nor the teacher was present in Brown's classroom. Shanklin later found Brown and the class with the choral class in the auditorium; but Brown had failed to amend his lesson plans to include the choral visit, although he had adequate time to do. He had presented none of the lesson plan that had he filed. Shanklin returned on October 19, 2000, to observe Brown's classroom ten minutes after class has begun. As he entered the classroom, two students ran out the back door. When questioned, Brown had no knowledge of their identity. Shanklin witnessed students harassing other students without correction from Brown while he was addressing the needs of only five of his 35 students. While Brown spoke with the small group, the other students were doing whatever they wanted. There were no class assignments being conducted by the other students. Shanklin later identified one of the students who had been harassing other students as John Fields. Shanklin removed Fields from class because his behavior was so menacing. Brown should have prohibited and corrected the student misconduct, which he failed to do. Shanklin gave Brown a written reprimand by letter dated October 30, 2000. Shanklin also observed Brown on December 4, 2000, during a previously announced observation. Brown did not begin class with an appropriate review of recent material or outline of the day's lesson. Student misconduct again was uncorrected by Brown. Students were moving around and talking during instruction by Brown without correction. This class was not a band class, but a music appreciation class, and there was no need for student movement during instruction. After this observation, Shanklin reviewed his observations with Brown in January of 2001. Following the January discussion, Shanklin observed Brown again later that month, at a previously announced observation. He also discussed that visit with Brown. Shanklin also had Dennis Hester, a professional cadre member, observe Brown's classroom instruction. As part of Hester's responsibilities to improve "less than satisfactory" teachers, Hester reviewed and approved the success plan developed for Brown. Pursuant to that plan, Hester assisted Brown with both formal and informal observations and conferences through 2000 and 2001. After multiple informal conferences in January, Hester began formal observations in February. Hester utilized a number of tools to accurately document the classroom instruction by Brown. Domain One Instrument is a tool in the Florida Performance Measurement System which identifies a teacher's ability to plan lessons. The Domain Two Instrument is a classroom management tool used in the Florida Performance Measurement System (FPMS) to assess how a classroom is run. Hester was trained to evaluate teachers by using both tools and has done so with over 30 teachers in Duval County. Hester also used a conference planning guide which is a list of behaviors observed indicating areas to be worked on, and the Clinical Educator Training (CET) anecdotal instrument to clarify the events of a classroom observation in detail. Hester observed Brown's class on February 1, 2001, and saw a number of students off-tasks, and one child sleeping. Hester observed Brown tell the sleeping child to "wake up, no slobbering on the desk . . ." Brown should have taken positive steps to keep the student awake, and should not have accused him of "slobbering on the desk." Hester discussed these deficiencies with Brown towards the end of February. Hester was due to have all of his evaluations completed on March 15, 2001. Although the Domain One, on planning lessons, was due from Brown to Hester on January 18, 2001 for a February 27, 2001, class observation, Hester did not receive it until March 7, 2001. Thereafter, Hester faxed his commentary of the Domain One to the school for Brown to review as the remaining time permitted. Although Hester did not specifically provide Shanklin with his observation notes for review, the principal reviewed the cadre's notes which outlined the similar misconduct and classroom mismanagement Shanklin witnessed himself. Shanklin's evaluation was also made with the consideration of an incident at the May graduation of 1999/2000 academic school year. Brown's band refused to perform after Brown instructed them to do so. It was later discovered that those students who refused to perform were academically ineligible to be in the class. In prior years, Brown had allowed ineligible students to perform in the school band against the school's rules and regulations, and had been told to stop permitting this. On March 15, 2001, Shanklin gave Brown an unsatisfactory annual evaluation. In evaluating Brown as unsatisfactory for Competency No. 1, Shanklin considered his own observations of Brown's failing to follow his established lesson plans. Brown's failure to manage his classroom and correct student misbehavior supports Shanklin' unsatisfactory evaluation under Competency No. 3. Because of a lack of academic climate due to classroom mismanagement and unorganized instruction, Shanklin deemed Brown to have been unsatisfactory in Competency No. 4. In addition, regarding Competency No. 4, Brown allowed students to eat in his classroom which was critiqued by Shanklin in a letter to Brown dated December 6, 2000. In evaluating Brown unsatisfactory under Competency No. 5, Shanklin considered Brown's failure to provide sufficient evidence that any real grades could be disseminated to Brown's students as there were no rubrics or student work visible for assessments. Finally, Shanklin gave Brown an unsatisfactory evaluation on Competency No. 9 because Brown never demonstrated any type of diversified lesson designed to maintain the attention of the students; which was needed as evidenced by the repeated observation of students sleeping in his class. Following the 1999/2001 academic school year, Brown was transferred to Jefferson Davis Middle School where Bob Powell was principal. Powell created an initial success plan for Brown when he first arrived in the beginning of the year. After formally observing Brown, Powell created a second success plan dated October 29, 2001, which was discussed and agreed to by Brown. The plan was designed for Brown to implement the components for his own benefit. Throughout the year, Powell observed Brown's classroom instruction. On November 20, 2001, Powell formally observed Brown's instruction. Thereafter, Powell also observed Brown on two more occasions on January 10 and 18 of 2002. During his observations, Powell witnessed students talking during "warm-ups," whose attention Brown failed to get. Powell observed that Brown failed to provide praise to his successful students which is needed at the middle school age. Powell noted problems Brown had with communicating with band parents. Powell was concerned that a band parent reported that Brown had threatened to fail and throw her child out of band practice which Brown had no authority to do. In addition, band parents also complained that Brown placed their names as chaperones on a field trip, without their permission. When this was revealed, the trip had to be cancelled. Following the formal conferences with Brown, Powell discussed his observations with Brown. Brown admitted to Powell that other District personnel were telling him the same things Powell was mentioning. Notwithstanding the counseling, Brown was unable to constructively adapt. Powell also requested Patricia Ann Butterboldt to observe Brown during his instruction at Jefferson Davis Middle School. Butterboldt is responsible for supervising and overseeing the curriculum of music teachers throughout the District. During the 2001/2002 academic school year, Butterboldt observed Brown with an intermediate class on two occasions. On November 1, 2001, Butterboldt observed that Brown failed to follow his own instructional classroom schedule. In addition, Brown utilized students to instruct other students in complex musical exercises for which students had no ability to adequately conduct the drill. Butterboldt also witnessed Brown's students consistently off task. On January 23, 2002, observation, Butterboldt again observed inappropriate classroom instruction and management, to include Brown's failure to correct the class for ridiculing a student. Butterboldt noted that even if students forget their instruments, the teacher is responsible to provide instruction to that student. Following both Butterboldt's observations, Powell was provided copies of her observation's reports. Sue Martin, professional cadre member, was requested by Powell to provide feedback on Brown's instruction. Her report was introduced as Exhibit 29. During the same academic school year, Mrs. Saffer, vice-principal observed Brown pursuant to Powell's request. Saffer also utilized the classroom observation instrument during her observation of Brown. Saffer observed that Brown failed to properly correct the behavior of non-responsive students. Although critical, Saffer also complemented Brown on his positive action; however, after reviewing Brown's grade book for the day of her observation, Saffer was surprised that the students were awarded grades without any means of evaluation Saffer could decipher. Afterwards, Saffer met with Brown weekly regarding his grade book. In addition to the grade book, Saffer also discussed with Brown her observations (formal and informal) of his instructional conduct throughout the school year. Although Saffer did not evaluate Brown, she did provide her observations to Powell for his evaluation. In addition to school assistance and counsel, Powell provided Brown with many opportunities for professional training. Brown attended at least two training sessions to Powell's knowledge. However, Powell learned that Brown rejected a training conference in Jacksonville offered to him by Butterboldt because he said the presenters of the conference were "racists." On January 30, 2002, Powell provided Brown with a notice warning him of an unsatisfactory annual evaluation. Powell based his notice of a possible unsatisfactory evaluation on all of the observations and notations he made and had been provided to him. Thereafter, Powell observed another instruction by Brown in February of 2002. However, Powell never witnessed Brown perform pursuant to the schedule attached to a letter drafted by Brown which allegedly addressed Powell's concerns. Powell eventually prepared Brown's annual evaluation for the year which reflected Powell's assessment of Brown's unsatisfactory performance demonstrated throughout the academic year. John Williams is the director of professional standards for the District who was responsible for generating the termination letter once he received the second unsatisfactory evaluation. After reviewing all of the notices and evaluations, Williams not only determined that the manner in which both principals utilized the teacher assessment system was appropriate, but that Brown's performance required that the District initiate Brown's termination from employment.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Respondent, Thomas Brown, be dismissed from employment. DONE AND ENTERED this 11th day of March, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2003. COPIES FURNISHED: Derrel Q. Chatmon, Esquire Duval County School Board 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 John C. Fryer, Jr., Superintendent Duval County Schools 1701 Prudential Drive Jacksonville, Florida 32207-8182
The Issue The issue is whether Petitioner properly determined that Respondent's employment as a continuing contract teacher should be terminated.
Findings Of Fact Petitioner operates, controls, and supervises the public schools within Nassau County, Florida. Respondent graduated from the University of Florida in 1978 with a Bachelor of Arts degree in English. She began working for Petitioner in the 1980/1981 school year at Emma Love Hardee Elementary School. That year, Respondent gave Petitioner an out-of-field assignment as a teacher of emotionally handicapped students. Respondent received her Master of Arts degree in Special Education from the University of North Florida in 1985. She began working as an Exceptional Student Education (ESE) instructor at Fernandina Beach High School in the 1983/1984 school term. Beginning with the 1999/2000 school year, Respondent's primary teaching assignment was as a performing arts instructor at Fernandina Beach High School. Respondent worked in that capacity until the 2006/2007 school year when she became a full- time English and ESE co-teacher. For the 2007/2008 term, Respondent taught English III and English IV. In 2008/2009, Respondent worked as a regular education English teacher. She also served as an ESE co-teacher for intensive language arts. Jane Arnold began working as Principal at Fernandina Beach High School for the 1998/1999 school term. Ms. Arnold completed a performance appraisal of Respondent in 1999 that resulted in an overall unsatisfactory rating. Of particular concern to Ms. Arnold in the 1998/1999 appraisal was Respondent's problem with completing documentation of lesson plans, including daily instructional strategies as well as specific examples showing how the subject matter would be delivered. The failure to provide proper lesson plans made it difficult to know whether Florida's Sunshine State Standards were being met. Respondent was also having problems with grading students' work and recording the grades. Student work papers were disorganized and some papers were missing. Therefore, it was hard to discern what work was completed and when it was completed. The failure to timely grade and record students' work made it difficult for students to know what they needed to do to improve. Ms. Arnold subsequently placed Respondent on a professional development plan (PDP). The one-page PDP required Respondent to improve three job-service categories. After Respondent satisfactorily completed the PDP within the prescribed 90-day period, Ms. Arnold recommended that Respondent's employment continue. Respondent received a satisfactory or above- satisfactory rating on all of her teacher performance evaluation from the 1999/2000 school year through the 2006/2007 school year. However, Respondent admits that she has had consistent problems with time management and organization throughout her career. In October 2007, Respondent received a mini-grant from the Fernandina Beach High School Foundation. Respondent used the grant to provide her students with novels she used to teach literature. Additionally, in October 2007, Respondent earned continuing education credits toward recertification by attending a conference sponsored by the Florida Association for Theatre Arts. During the conference, Respondent participated in the "In Search of Shakespeare" workshop, which she hoped would prepare her to introduce Shakespeare as part of the British literature curriculum. Respondent's problem with providing focused instruction became critical during the 2007/2008 school year. Students in Respondent's classes were receiving failing grades and did not know why. Respondent made errors when reporting grades and had difficulty submitting them on time. Respondent was easily upset in the classroom. She would become emotional, lose her temper, and say things that were less than professional. Ms. Arnold heard disruptions in Respondent's classroom, which was behind a curtain, behind a stage, and behind double doors. Curtis Gaus was the assistant principal at Fernandina Beach High School from 2004 to 2008. Mr. Gaus also witnessed periods with the level of noise in Respondent's classroom was so loud that it could be heard in the cafeteria during lunchtime. Respondent was frequently tardy. As a result, Mr. Gaus would have to unlock Respondent's room and wait with her students until Respondent arrived. In October 2007, Respondent was required to complete progress monitoring plans and schedule parent conferences. The conferences were scheduled on October 14, 15, and 16, 2007. Petitioner did not turn in the progress monitoring plans until two months after holding the conferences. As observed by Ms. Arnold and Mr. Gaus, Respondent frequently failed to provide her students with any explanation of expectation as to a lesson or any modeling of what it was she expected the student to do. She provided no immediate feedback or clarification for the work they were attempting. In January 2008, Ms. Arnold observed Respondent using instructional time to read questions to students, expecting them to write the questions as she read them. Ms. Arnold advised Respondent that she should not use class time to dictate questions. On January 31, 2008, Ms. Arnold met with Respondent and gave her type-written comments, suggesting areas for Respondent to improve classroom instruction. Mr. Gaus observed teacher classroom at least once a month. Many times Respondent would be unaware that Mr. Gaus was in her classroom. For the majority of Mr. Gaus' visits, Respondent's students were off task. On one occasion, while Respondent was handing out notebooks, the students were playing video games and talking to each other. In February 2008, Respondent's English IV students presented a Renaissance Faire. The students researched and prepared exhibits, presented projects, and competed in a soliloquy contest sponsored by the National Endowment for the Arts to earn extra credit toward their semester grade. In support of the Renaissance Faire, Respondent wrote lesson plans, developed a project rubric, implemented classroom assignments and kept a record of student project grades. Respondent invited parents, current and former teachers, as well as community leaders to act as judges for an evening program presented by the students. Respondent took a six-week medical leave effective March 5, 2008. On March 8, 2008, Respondent attended a teacher's conference entitled Super Saturday. As a result of participation at the conference, Respondent earned the points she needed to renew her teaching certificate. Petitioner's Classroom Teacher Assessment Handbook for the 2007/2008 school year states that a continuing contract teacher must receive one formal observation, followed within 10 days by a post-observation conference. During the post- observation conference, a PDP must be developed for teachers receiving unsatisfactory performance appraisal reports. The formal observation must be completed by March 14. Performance appraisals are required to be completed and submitted to the Superintendent no later than April 7. However, Petitioner was on medical leave on these dates. In May 2008, Respondent provided Petitioner with a physician's written recommendation for extension of Respondent's medical leave. Petitioner approved extension of the leave through August 11, 2008. On May 29, 2008, Ms. Arnold wrote a letter to Respondent, who was still on medical leave. A Notification of Less Than Satisfactory Performance was included with the letter. The May 29, 2008, letter reminded Respondent that they needed to arrange a time in July to complete Respondent's 2007/2008 performance appraisal and to discuss the implementation of a PDP for the 2008/2009 school year. The letter refers to written comments that addressed Respondent's performance and that were provided to her earlier in the school year. In July 2008, Petitioner sponsored vertical and horizontal curriculum development workshops for English teachers of advanced placement and honors students. Some English teachers of regular/average students also attended the workshops. Respondent did not receive this training. On July 21, 2008, Ms. Arnold and Respondent met to discuss Respondent's 2007/2008 performance appraisal and PDP. The evaluation rated Respondent unsatisfactory with a total overall score of four out of a possible 100 points. Respondent's 2007/2008 performance appraisal contained Ms. Arnold's comments in each of the performance categories as follows: Planning/Preparation: Lack of long and short term planning[.] Detailed lesson plans must identify learning objective and the instructional strategies/activities/assessment planned to accomplish the objective. Work should be clear, compelling and engaging and include representative works and genres from the Anglo Saxon period through the present day. Feedback to students should be timely and specific. Documentation should be organized and accessible. Classroom Management: Classroom environment hostile, negative and chaotic. 3-step discipline procedure not documented. Records not accurate or timely. Classroom procedures lack organization. School & Board policies not consistently enforced. Room in disarray with papers, books, and materials in haphazard piles throughout the room. Assessment/Management: Interventions for academic, attendance and behavioral problems lacking. Parent contacts inconsistent and not documented. 3-step discipline procedure not implemented. Effective instructional strategies lacking. Work is frequently not meaningful or relevant to unit of study. Intervention/Direct Services: Teacher read test questions to students, refused to repeat questions, and subtracted points from students who requested additional clarification. Papers are frequently "lost," performance expectations for assignments not clearly defined, and grade information not easily available to students and parents. Technology: Teacher web site/Edline not utilized[.] Frequent errors in grade reporting[.] Difficulty meeting deadlines[.] Collaboration: Frequently alienates students and parents by failing to produce documentation for grades or clarification of assignments[.] Does not follow Board Policies for make-up work, and fails to communicate problems to parents to seek their assistance. Staff Development: While Ms. Autry has participated in numerous professional development activities for effective instruction, the strategies identified and recommended have not been implemented with any consistency in her classroom. Parental Input: Parents express frustration and impatience with the problems encountered by their students in Ms. Autry's class. Clear communication of academic and behavioral expectations needs to be provided to all stakeholders. Complaints about "disparaging comments" made by Ms. Autry about the students in her classes are frequent, both from students and teachers. Professional Responsibilities: Ms. Autry must learn to maintain a professional demeanor at all times in the classroom, and must avoid making negative comments about the students with whom she works. Improvement of instruction must become a priority. Extra-curricular involvement should be limited as it appears to interfere with time that should be devoted to her classes. Deadlines need to be met. Grading and attendance should be timely and accurate. Curriculum deficiencies must be addressed. Interim Student Growth: Academic interventions should be provided and documented for students experiencing difficulty in successfully completing the coursework[.] Parents must be notified and encouraged to participate in the intervention strategies. Grades should be fair, consistent, and easily available to students and parents. The greater weight of the evidence indicates that Ms. Arnold's comments on the 2007/2008 performance appraisal accurately summarized Respondent's professional deficiencies. Many of Ms. Arnold's comments show the same types of problems that Respondent has experienced for years. In 1984, Respondent used sarcasm towards students and failed to submit paperwork on time. In 1988, Respondent had problems with organization, submitting timely grades, and completing paperwork accurately and on time. In June 1998, Respondent was disorganized, late to work, and untimely in submitting paperwork. In August 1998, Respondent had trouble with accurate and punctual recordkeeping, using varied and appropriate educational strategies, and demonstrating effective classroom management. In the 2001/2002 school term, Respondent had trouble submitting grades on time. The final comment of Ms. Arnold on the last page of the 2007/2008 performance appraisal, states as follows: As a result of an unexpected medical leave, this evaluation and resulting professional development plan can not be completed until Ms. Autry's return to work. Ms. Arnold and Respondent signed the evaluation on July 21, 2008. Also on July 21, 2008, Ms. Arnold and Respondent reviewed a 32-page PDP plan. The PDP was designed to meet each area of deficiency on Respondent's 2007-2008 performance appraisal. Respondent did not take advantage of the opportunity to request any specific strategies or otherwise provide input regarding the PDP on July 21, 2008. However, the next day, Respondent sent Ms. Arnold an e-mail, requesting Ms. Arnold to review a folder of documentation to support Respondent's performance in certain areas. Ms. Arnold responded in an e-mail dated July 22, 2008. Ms. Arnold agreed to review the materials provided by Respondent. She also stated that "evaluation specific activities" might help them revise the PDP as needed. Ms. Arnold also invited Respondent to utilize the "Comments of Evaluatee" section of the performance appraisal. In subsequent e-mail, Respondent and Ms. Arnold agreed on a time to meet. Sometime after receiving the 2007/2008 performance appraisal, Respondent performed a self-assessment on all essential performance functions. She gave herself an overall rating of "needing improvement," with 30 of 100 points. For the 2008/2009 school year, Ms. Arnold assigned Respondent to teach four sections of English IV, first through fourth periods. Respondent had some regular education students and some ESE students in these classes. With only one preparation, Respondent did not have and should not have needed a co-teacher to assist her in teaching four classes of English IV. Respondent also was assigned as a co-teacher in two intensive language classes, fifth and sixth period. Anita Bass, a Reading Coach, was primarily responsible for planning and teaching the two intensive-language classes. Respondent, as a co-teacher, was supposed to provide assistance in general and to specifically provide help to ESE students. When Ms. Bass was absent, Respondent would teach the intensive-language class. On one occasion, Respondent taught a lesson on fables. On another occasion, Respondent taught a lesson on neurosurgeon, Dr. Ben Carson. In August 2008, Respondent was assigned a new classroom. She moved her materials from the room behind the cafeteria to a more traditional classroom. On September 12, 2008, Ms. Arnold visited Respondent's classroom for 15 minutes. During that time, Ms. Arnold observed Respondent reading from a text. Only three students had their books open and there was very little student participation. On September 15, 2008, Ms. Arnold sent Respondent an e-mail, advising that her lesson plans and weekly course outline were past due. On September 16, 2008, Ms. Arnold sent Respondent an e-mail regarding her classroom observation on September 12, 2008. The message also requested submission of Respondent's lesson plans and weekly course outline along with a written explanation as to Respondent's reason for not meeting the deadline. On October 13, 2008, Ms. Arnold visited Respondent's classroom. Ms. Arnold found the students talking, sleeping, and watching CNN because the movie described in Respondent's lesson plan was over. None of the students had books or papers on their desks. Respondent stayed behind her desk for approximately ten minutes then handed some graded brochures back to the students. Respondent spoke to her students for about five minutes during the 22 minutes of Ms. Arnold's visit. The students did nothing during that time. In an e-mail written later on October 13, 2008, Ms. Arnold noted that Respondent's weekly syllabus dated October 13, 2008, showed that the students were scheduled to watch a movie then complete a reading guide and a quiz. The e- mail discussed Ms. Arnold's observations earlier in the day and requested revised lesson plans for the week. Referring to the lesson observed that morning, Ms. Arnold also requested an explanation of the learning objectives and teaching strategies employed by Respondent. Ms. Arnold reminded Respondent that required tasks were to be completed in a timely and accurate fashion. A subsequent e-mail dated October 13, 2008, stated that Ms. Arnold had received Respondent's ESE Mainstream Report for four students. According to the message, the reports were given to Respondent on September 29, 2008, were due on October 3, 2008, and not given to the teacher of record until October 7, 2008. Because the Mainstream Reports were incomplete for several students, Mr. Arnold requested Respondent to review her Professional Growth Plan, requiring tasks to be completed in a timely and accurate fashion. Ms. Arnold also requested Respondent to provide the missing information. On October 21, 2008, Ms. Arnold sent Respondent an e- mail, requesting lesson plans that were due on October 17, 2008. Joyce Menz is Petitioner's Director of Staff and Program Development. In November 2008, Ms. Menz provided Respondent with an opportunity to attend a workshop related to classroom management. Petitioner did not attend the workshop. In the fall of 2008, Ms. Menz hired Jimi Buck, a retired language arts resource teacher and reading curriculum specialist, to sit and plan a lesson with Respondent. Ms. Buck then demonstrated instruction of the lesson plan in one of Respondent's classes. Ms. Menz arranged for Respondent to observe Ms. Drake, an English IV teacher at another school. Respondent and Ms. Drake spent some time going over Ms. Drake's yearlong plan of how and what she would be teaching. Ms. Menz hired a substitute for Respondent's classes so that she could consult with Ms. Drake. Ms. Menz hired Ms. Mealing, another consultant, to meet with Respondent and work on a week of lesson plans. During their time together, Respondent and Ms. Mealing viewed and discussed a DVD entitled "Strategies for Secondary English Teachers." Ms. Menz purchased the DVD specifically for the purpose of helping Respondent. Ms. Menz provided a substitute for Respondent's classes while she reviewed the materials with Ms. Mealing. Ms. Arnold made it possible for Respondent to observe Ms. Barlow's classes at Fernandina Beach High School, by hiring a substitute for one-half day. Ms. Barlow taught Advanced Placement and English IV Honors. Ms. Arnold also provided additional help to Respondent when school began in the fall of 2008. First, Ms. Arnold did not assign Respondent as a teacher of record for any ESE students. As a teacher of record, Respondent would have been required to keep track of what was happening with her ESE students. Ms. Arnold also excused Respondent from participating in any extracurricular activities. Ms. Arnold hoped that Respondent would devote all of her energy to improving her instruction. At times, Ms. Arnold would go into Respondent's class to get it under control in response to disruptive behaviors. Ms. Arnold then would make suggestions to Respondent about how to keep control, reminding her of the need to use the three-step discipline procedure. On November 6, 2008, Ms. Arnold and Respondent signed a performance appraisal. Respondent's overall rating on the evaluation was unsatisfactory. Respondent indicated that she thought her overall rating should have been "needs improvement," which would have still required a plan of assistance. Mr. Gaus observed Respondent during the PDP period and completed a performance evaluation. Mr. Gaus found that there was no improvement in keeping students on task. During the post-observation conference with Respondent, she continually acknowledged that she had problems with administrative tasks, lesson plans, submitting grades and managing the behavior of her students. On November 17, 2008, Ms. Menz observed Respondent's classroom. Ms. Menz found that Respondent's overall planning was not based on students' needs and was not clear and engaging. Ms. Menz observed two students who appeared to be sleeping and another texting. While Ms. Menz was in Respondent’s class, six students lost their early-lunch privilege. On the November 17, 2008, performance appraisal prepared by Ms. Menz, Respondent received an overall rating of unsatisfactory. Respondent made a comment on the evaluation form, indicating that she had learned a lot from the post- observation conference with Ms. Menz and looked forward to receiving further assistance. On November 21, 2008, Mr. Gaus, sent Respondent an e- mail. The message advised that Respondent had not posted her grades on Edline since October 21, 2008, and should do so as soon as possible. Edline is the computer program that Petitioner uses to record grades. Despite the PDP, Respondent's deficiencies did not improve. In her semester exam, she used materials that the students had not read. When the students questioned Respondent, she told them, "If you want to read it, look it up on the internet." In response to the PDP, Respondent developed a behavioral incentive plan to implement in the reading classes where she was the co-teacher. Respondent sent a letter to inform parents about the plan. The behavior incentive plan sought to reward positive student behavior with bathroom passes, snacks, and paper money. However, there were school rules against having food in the classroom and allowing bathroom passes except for emergencies. Moreover, the plan was not well received because the students thought Respondent was tallying their actions. As a co-teacher, Respondent was required to help implement a computer-directed reading program. Because Respondent was unable to provide assistance with the program, a third person had to be called in to perform the task for Respondent. An additional concern of Ms. Arnold's was that Respondent continued to ignore Petitioner’s policy regarding makeup work. Ms. Arnold was also concerned that Respondent was losing her temper and taking points from students who asked for clarification on assignments. In January 2008, Ms. Arnold observed Respondent's classroom again. Her comments on the performance appraisal were as follows: Planning/Preparation: Second 9-weeks spent on "Pygmalion" [.] Based on lesson plans, there were no novels, short stories, or poems by British writers included in the material taught (See eval. #1)[.] Classroom activities lack relevance and timeliness. (See eval. #2) Strategies and Objectives listed in lesson plans were not reflected in actual classroom activities. Classroom Management: Inappropriate student behavior during classroom observation was addressed and corrected by instructor. Developed behavioral incentive plan for students in Reading Classes with reward system for positive student behavior and achievement (bathroom passes, snacks, paper money)[.] Assessment/Management: Portions of the semester exam do not correlate to stated learning objectives, learning strategies, or class activities listed in the semester outline, lesson plans, or weekly syllabus. Students have not read "Julius Caesar" or "Heart of Darkness." Neither have they studied the three poems they are to compare. Students were told to "look up" the meaning of the literary terms that they were given to use in analyzing the poems on the exam. Many questions given to student in advance. Intervention/Direct Services: Ms. Autry does not demonstrate knowledge and understanding of the English IV curriculum. Significant works by British writers have not been taught. (See observation #1) Pacing is slow, with 9-weeks spent on "Pygmalion" to the exclusion of British novels, short stories and poems. Activities are not aligned with student needs. In- depth skills development is lacking. Technology: Ms. Autry utilizes technology for administrative and instructional tasks[.] However, on December 16th, Edline grades had not been updated since 10/23[.] Also on that date, the last weekly syllabus posted was for week 11. Collaboration: Ms. Autry's written complaints about ESE co-workers in which she stated the need for colleagues to provide accommodation for her [medical condition] resulted in strained working relationships. Ms. Autry attends department meeting and faculty meetings as outlined in the Plan of Assistance. Staff Development: Completed training in ESE/IEP, Tablet PC, Edline/Grade Quick and ELMO. Received direct training by Ms. Menz, Ms. Mealing & Ms. Buck to address instructional deficiencies. Declined suggested training opportunities in Discipline & Motivation Strategies, Behavior Management Strategies, Classroom Management, Lesson Planning, Parental Input, Classroom Assessment and Professional Responsibilities. (Based on identified needs in PDP and classroom observations.) Parental Input: Edline/Grade Quick posting irregular. Few documented parent contacts. Professional Responsibilities: Ms. Autry is teaching four sections of English IV and is the co-teacher in two sections of Reading taught by the Reading Coach. She in (sic) not the teacher of record for any ESE students. During the 90- day plan of assistance, lesson plans were submitted late 15 out of 18 weeks. Grades were not posted in a timely fashion on Edline. (Ms. Autry was excused from participating in extra curricular activities in order to focus on her plan of assistance. Interim Student Growth: Students who had not passed the FCAT were assigned to the Reading Coach who provided individual/group instruction during the first 9-weeks. 96% of Ms. Autry's students received semester grades of 70% or higher. No other assessments are available at this time. Ms. Autry and Ms. Arnold signed the performance appraisal dated January 7, 2009. Ms. Autry requested that Ms. Arnold attach information about a disability and its accommodations to the evaluation. Ms. Arnold complied with the request. Two weeks before the expiration of the PDP, Respondent requested a two-month extension because she could not comply with the plan. Respondent's request was denied. Petitioner's Superintendent, Dr. John Ruis, placed Respondent on paid suspension when she did not improve. Dr. Ruis then recommended that Respondent be suspended without pay pending termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment as a teacher. DONE AND ENTERED this 22nd day of April, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2010.
The Issue The issue presented is whether Petitioner should terminate Respondent's professional service contract for his failure to correct his performance deficiencies within his 90-calendar-day probation period.
Findings Of Fact At all times material hereto, Respondent, Jose L. Rojas, has been employed by The School Board of Miami-Dade County, Florida, as a teacher pursuant to a professional service contract. During the 2004-2005 school year, he taught regular sixth-grade math classes at Redland Middle School. Teachers employed by the School Board, including Respondent, are evaluated pursuant to the Professional Assessment and Comprehensive Evaluation System, known as PACES. PACES was collectively bargained with the teachers' union and approved by the Florida Department of Education in 2001 as being in statutory compliance for teacher evaluations in Petitioner's school district. PACES focuses on student learning and teacher professional development, as well as on teaching behaviors. In PACES, there are seven domains: six are to be observed during a classroom observation, and the seventh domain deals with professional responsibilities demonstrated outside the classroom observation. The domains reflect the required statutory competencies of Section 1012.34, Florida Statutes. Each domain has teaching and learning components, and each component has indicators, 44 of which are required to meet standards under PACES. The 44 indicators are fundamental units of observation that are used to make professional judgments about the quality of learning and teaching. They represent the basic level of teaching to be demonstrated by all teachers in Petitioner's school district, i.e., the minimum requirements. They are the objective standards described in the PACES manual. Teachers have PACES manuals and access to the PACES Internet website. The standards are also repeated in any professional improvement plan, known as a PIP. It takes only one unacceptable indicator for a domain to be rated below performance standards. One below-standard domain indicates a teacher's non-compliance with statutorily- required competencies. The Florida Comprehensive Assessment Test (FCAT) measures student performance on the State's objectives for Florida's required curriculum, the Sunshine State Standards. While Petitioner's school district, as a whole, must utilize the FCAT data and indicators of student performance, there is no similar requirement for evaluating teachers by the results of the performance of their students on the FCAT (or other local assessments for subject matters not covered by the FCAT). Individual evaluations of teachers, however, must address student performance. PACES addresses student performance in every domain. What is assessed is whether the teacher is monitoring and gauging student progress in the classroom, making sure that the students are mastering the required curriculum. Teachers are expected to use their students' FCAT scores from the prior year for planning, pursuant to PACES domain I, to meet the students' deficiencies. Redland utilizes FCAT results in this manner. Further, a teacher's teaching strategies and activities are required to address FCAT expectations. At the beginning of the school year, teachers at Redland receive copies of the scope and sequence for what the students are to learn during the school year. The teachers develop the curriculum and timelines for meeting benchmarks to be covered during the school year. PACES domain II, as another example, deals with the teacher's management of the learning environment. If time is not managed and is, instead, wasted, the students' achievement of the Sunshine State Standards will be impacted, which will affect FCAT scores. PACES domain IV, as yet another example, requires teachers to informally assess the students' engagement in learning to assess their performance to ascertain whether the students are mastering the Sunshine State Standards. All of the administrators who were PACES observers in this case have had extensive training in the standards to be observed and evaluated in teacher performance and student learning and are, therefore, authorized to perform PACES observations, which are based upon what the observer objectively observes while in the classroom. The performance probation process in Petitioner's school district, like the PACES teacher evaluation process, was collectively bargained with the teachers' union. The process is as follows: if there is an observation conducted by an administrator that indicates a teacher is performing below standards, it becomes the "initial observation not of record." The administrator meets with the teacher, goes over the observation, makes suggestions for improvement, and notifies the teacher that he or she will be observed again in approximately three weeks. The administrator offers the teacher the assistance of a professional growth team (PGT). Use of a PGT is voluntary on the part of the teacher at this point. The PGT is part of the professional development aspect of PACES. PGTs are composed of experienced peer teachers who are extensively trained in PACES and are authorized to give support and assistance to teachers to improve classroom instruction. The same administrator who conducted the "initial observation not of record" must conduct the next observation, the "kick-off observation," which is the first observation of record in that school year. If this observation reveals below- standards performance, a conference-for-the-record (CFR) is held. A PGT and a PIP are provided to the teacher. The performance probation period begins the day after a PIP is given to the teacher. The teachers' union and Petitioner then mutually agree on the calendar for counting the 90 days. There must be two official observations during the performance probation period. The teacher must meet all 44 required indicators in order to meet performance standards during the teacher's performance probation. If any indicators are below performance standards, PIPs are again given. There are four levels of PIP activities, which are progressively more complex. A "confirmatory observation" takes place after the 90th day to determine whether the teacher has corrected his or her deficiencies. The "confirmatory observation" must be completed within 14 days after the conclusion of the performance probation, and the evaluator must forward a recommendation to the Superintendent of Schools. Within 14 days of receiving the evaluator's recommendation, the Superintendent must notify the teacher whether he will recommend to the school board that the teacher's employment be continued or terminated. It is not sufficient for the teacher to improve on only some of the deficient indicators. It has been the custom and practice under the collective bargaining agreement that remediation occurs only when the teacher meets standards in all of the required indicators. Respondent's initial observation was conducted by Assistant Principal Fahringer on September 23, 2004. Respondent was teaching a class of 20-23 students. Respondent told the students to take out their agenda books which contained their homework. As Respondent went around the classroom checking each student's homework, the remainder of the students just sat and talked, waiting for a lesson to begin. They were not working on math. Out of the two-hour block of class time, the class was off-task about 25 percent of the time. Respondent failed to meet performance standards in components and indicators of domain II, managing the learning environment, and domain IV, enhancing and enabling learning. Pursuant to the agreed-upon procedures, the observation became "not of record." Assistant Principal Fahringer met with Respondent September 28, 2004, went over the evaluation, and explained why Respondent had not met performance standards. Fahringer gave Respondent suggestions for improvement and advised him that she would return to do a follow-up observation. She offered Respondent a PGT, which he accepted. On October 19, 2004, Fahringer performed Respondent's first observation of record, the "kick-off observation." Respondent was giving a lesson on fractions, decimals, and percentages to 32 students using cups of M&Ms and a chart. Respondent told the students to divide into groups of four. There followed much noise and confusion. As Respondent went from group to group, he did not monitor the other seven groups. Students threw M&Ms and paper wads. Respondent did not meet performance standards in components and indicators of domains II and IV. He did not meet standards in domain II because the learning did not begin promptly. After a five-minute delay, another five minutes were wasted while Respondent counted out the M&Ms. Ten minutes wasted at the beginning of the class is a significant amount of time since time spent on-task improves achievement. There were delays in the organizational and teaching/learning activities. When Respondent told the students to divide into groups of four, some students appeared uncertain as to what group they were in and, instead, milled around talking noisily. Some students remained off-task throughout the lesson. Respondent did not address the off-task behavior because he did not appear to even notice it while he focused on one group at a time. Students came to Respondent with their agenda books, "visiting" other students and talking with them on the way. Eight students were distracted, noisy, and off-task, but Respondent failed to redirect them. Respondent's expectations about acceptable behavior had apparently not been made clear to the students. Although he told them to raise their hands and not to talk, they continued to talk noisily to each other for 50 minutes. Respondent failed to effectively monitor the class throughout the lesson. When he was with one group, he did not use management techniques to diffuse the unacceptable off-task behavior of the other groups. The remaining seven groups did not work (no learning took place) while they waited for Respondent to come to them. Respondent did not meet standards in domain IV because he did not introduce the purpose of the lesson. The students were told how to count the M&Ms and complete a chart, but there was no explanation as to what they were to learn. The students did not understand that they were learning the relationship among fractions, decimals, and percentages. Respondent did not give clear and complete directions. He told the students that they were going to "integrate" decimals, percents, and fractions, a meaningless word choice. The directions did not include any explanation of content or integration of mathematical concepts. Respondent did not demonstrate accurate content knowledge. He gave inaccurate and unclear information to the students. He counted the various colored M&Ms and put the numbers on the chart. On the chart, he explained that the decimals--.35, .10, .25, .17, .03, and .71--equal one, when in fact they equal 1.61. Also on the chart, Respondent explained that the percentages--35%, 10%, 25%, 17%, 3%, and 71%--equal 100%, when in fact they equal 161%. The students accepted the inaccurate information. On the line of the chart indicating the fractions, Respondent reduced some of the fractions leaving different denominators, which made the addition of those fractions difficult. On October 29, 2004, Principal DePriest and Assistant Principal Fahringer held a CFR with Respondent to address Respondent's sub-standard performance, his performance probation, recommendations for improving the specific areas of his unsatisfactory performance, and Respondent's future employment status with Petitioner. Respondent's input was sought, and he was formally assigned a PGT. Respondent was given a copy of the summary of the CFR and a PIP on November 1, 2004. The PIP required him to read and summarize pertinent sections from the PACES manual by November 22, 2004. Respondent's performance probation period began November 2, 2004, the day after he received the PIP. He was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed time. Respondent's PGT provided assistance to him throughout his performance probation. Respondent failed to complete his PIP activities by the November 22 deadline. On December 2 he was given another 24 hours to comply, which he did. On November 24, 2004, Respondent was formally observed in his classroom by Principal DePriest. Respondent was presenting a lesson to 19 students, but the classroom was too chaotic for learning to take place. Respondent again did not meet performance standards in domain II. Learning did not begin promptly. Respondent wasted 12 minutes reprimanding students, taking roll, and answering his personal cell phone while the students were not engaged in learning. There were also inefficient delays in organizational and teaching/learning activities. The students went to the board, one by one, to solve math problems. Respondent spent approximately five minutes with each student at the board while the rest of the class became noisy, walked around, or slept. Respondent failed to monitor off-task behavior or the behavior of the entire class. As Respondent focused on the one student at the board, the other students were off-task for up to five minutes at a time throughout the lesson, talking, putting their heads down, tapping their pencils, and making inappropriate comments such as "Can someone choke me?", "Can someone kill me?", and "Can I die now?". One student simply played with her hair for six minutes. Essentially, everyone was talking, and no one was listening to Respondent. Yet, Respondent did nothing to redirect the students. He did not appear to have classroom conduct rules in place. Thus, Respondent failed to make his expectations about behavior clear to the students. He instructed them not to talk without raising their hands. Nevertheless, eight of the students talked out-of-turn for 20 minutes without raising their hands. DePriest met with Respondent on December 2, 2004, to review the observation. DePriest provided assistance through a PIP to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes on the PACES Internet website. Respondent was to maintain a log and discuss techniques and strategies with DePriest. Respondent's deadline to complete his PIP was January 6, 2005. On January 10, 2005, Respondent was formally observed by Assistant Principal Janice Farrell. Respondent was presenting a lesson on perimeters and surface areas to 22 students. The lesson was disorganized, and there was an "air of confusion" in the class. Many students were being unruly and exhibiting off-task behavior. Therefore, not much learning was taking place. Respondent still did not meet performance standards in domains II and IV that had been previously identified. He also failed to meet performance standards in components and indicators not identified in the kick-off observation of October 19, 2004, and, therefore, not the subject of Respondent's 90-day performance probation or this Recommended Order. Respondent caused inefficient delays in organizational and teaching/learning activities. The learners were instructed to complete a "bellringer" activity, i.e., an activity that is used at the beginning of the class period to engage the students in learning as soon as they enter the room. Although they were instructed to complete it, eight of the 22 students did not receive a bellringer worksheet. Students were asking for materials and attempting the activity unsuccessfully on their own. Respondent appeared unaware of the problem Respondent failed to monitor off-task behavior and disengagement from learning throughout the lesson. One student continuously called out Respondent's name, louder and louder, for five minutes. Students talked and copied each other's answers. While a student walked around stamping the other students' agenda books, they became off-task. A group of three students at a back table remained off-task throughout the lesson, talking, copying each other's answers, and throwing papers. Respondent did not redirect any of these students until the last five minutes of the class. Respondent failed to monitor the whole class effectively. When he went to the back of the room to address a tardy student without a pass, he turned his back on the other 21 students who changed seats, threw papers at each other, and hit each other with rulers. Respondent did nothing to redirect his students. He failed to make the purpose or importance of the learning tasks clear to the students. He did not give a rationale for the bellringer activity, which consisted of answering questions about perimeters and areas of geometric shapes. He also gave the students inaccurate information. He incorrectly calculated the perimeter of a square as 3+3+3+3=15. DePriest and Farrell met with Respondent to review the observation. Farrell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP to help Respondent correct his deficiencies. Respondent's PIP required him to complete self- assessment activities through the PACES website. He was to watch vignettes provided by the website in order to understand what the PACES indicators required of him. Respondent's deadline to complete his PIP was February 11, 2005. Because Respondent's second observation within the performance probation period was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether Respondent had corrected his deficiencies. Principal DePriest performed that observation on February 22, 2005. On that day, management of the learning environment and classroom discipline were non-existent. Respondent was presenting a lesson on geometric shapes to 18 students. While he did have instructions written on the board, there were still the same kinds of delays seen previously, and the students were still not engaged in learning. Overall, the class environment was chaotic. One-third to one- half of the class was off-task at any given time. The class was completely disorganized; the students were not engaged; the students did not pay any attention to Respondent, and very little learning took place. Each time supplies were distributed, commotion resulted. When colored paper was distributed so that the students could trace the shapes, they got into arguments over the different colors, negotiated the trading of colors, and asked Respondent for different colors. When rulers were passed out, the students were not instructed to use them to draw the geometric shapes. Some had already drawn the shapes freehand. Others were dueling with the rulers. Some tore the shapes, rather than waiting until they received scissors. Respondent again did not meet performance standards in domain II as identified in the kick-off observation. Learning did not begin promptly. Respondent spent 10-11 minutes taking roll and reprimanding tardy students. There were inefficient delays in organizational and teaching/learning activities. Respondent allowed students to talk and distract others. Students were not paying attention. Respondent accepted a phone call and made a phone call during the class. He failed to monitor the off-task behavior caused by the manner in which supplies were distributed and failed to redirect the students, including while they argued about paper, scissors, and rulers. DePriest notified Respondent on February 23, 2005, that Respondent had not satisfactorily corrected noted performance deficiencies during his performance probation period and that DePriest would recommend to the Superintendent of Schools that Respondent's employment be terminated. On that same day, DePriest transmitted such a memorandum. On March 9, the Superintendent notified Respondent that the Superintendent would recommend that the School Board terminate Respondent's employment contract for Respondent's failure to correct his noted performance deficiencies during his performance probation. Petitioner has met all procedural requirements and statutory time frames. The FCAT was administered to Florida students in late- February to early-March, 2005. Petitioner received Respondent's students' scores on May 17 and the district-wide FCAT results on May 19, 2005, the day before the final hearing in this cause. The district as a whole showed "tremendous" progress over the prior year. Even though Redland is a "low-performing" school, it likewise showed progress over the prior year in reading and mathematics. Respondent's students, however, failed to follow this trend. Petitioner does not use a teacher's current students' FCAT scores in assessing a teacher's performance because the scores are released too late in the school year. PACES, however, addresses student performance, as statutorily required. Where a teacher's students are observed as being noisy throughout lessons, being confused, not paying attention, and being given erroneous lesson content, there is a clear lack of student performance, and they are not engaged in learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent failed to correct his performance deficiencies and terminating Respondent's professional service contract, effective April 13, 2005. DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2005. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Rudolph F. Crew, Ed.D, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue The 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
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
The Issue The issued posed herein is whether or not the Respondent School Board of Dade County's reassignment of Petitioner/student, Valerie Patrice McDonald, from Miami Springs Junior High School to the Jan Mann Opportunity School North, should be upheld.
Findings Of Fact Valerie Patrice McDonald, Petitioner, is a student enrolled in the Dade County Public School System. Petitioner was enrolled in Miami springs Junior High School in August of 1978. Petitioner's guidance records indicates no serious behavioral problems and that her attendance at school is excellent. Her academic progress has been a steady B and C average since enrolling in the public school system. Petitioner was referred to the guidance office of Miami Springs Junior High School on numerous occasions during the 1978-1979 school year for various disciplinary problems. For example, on September 25, 1978, Petitioner was referred by her mathematics teacher for playing and not working in class. For this referral, she was counseled. Again, on October 25, 1978, she was referred by the social studies teacher for "being involved in a classroom disturbance with another student wherein pencils were broken, books were thrown out the window and the students began kicking each other. A parent conference was requested." On November 3, 1978, Petitioner was referred by the physical education teacher for "striking another student in the locker room for no apparent reason. Petitioner counseled and warned by principal." Again, on November 16, 1978, Petitioner was counseled for being loud and for refusing to remain quiet when requested. Petitioner was placed outside the classroom door by her English teacher. This pattern of disruptive behavior continued through March of 1979 when Petitioner was involved in a fire incident in the girl's physical education locker room. Based on this incident and the culmination of the prior behavioral problems, an administrative placement was requested by the school board for Petitioner to be assigned to the Opportunity School, which request was approved on April 3, 1979. Since that time, Petitioner has been attending the Jan Mann Opportunity School. Charles W. Bales, principal of Miami Springs Junior High School, testified that the assignment of Petitioner to the Opportunity School is beneficial inasmuch as it permits the student to utilize the benefits of smaller class settings, better individualized instruction; smaller class enrollments; better counselor to pupil ratio and basic educational program which enables a "disruptive" student to succeed in an individualized instructional setting. (TR 18-20) Testimony also reveals that the Opportunity School has a full-time visiting teacher who serves as the contact person for resolving any individual problems such as attendance or other behavioral problems for students at the Opportunity School. Ms. Helen Wilson, Petitioner's mother, requested that Principal Bales reassign Petitioner from three of her teachers due to matters which Ms. Wilson considered to be personal in nature. Principal Bales explained that there were approximately 1500 students at the school and that it was impossible for him to reassign students when personal differences of opinions exist between their teachers. Additionally, Principal Bales testified that students reassigned to the Opportunity School may request a transfer back to the regular school program following the close of the grading periods. Inasmuch as Petitioner has been attending the Jan Mann Opportunity School since March, 1979, it appears that she will be eligible for a reassignment to the regular school program provided that her grades, attendance, and behavioral pattern is such that she can function normally in the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's petition filed herein be dismissed. Additionally, it is requested that the Respondent give full consideration to Petitioner's request that she be reassigned to the regular school program when such a request is properly filed with the school board. RECOMMENDED this 27th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1979. COPIES FURNISHED: Ms. Helen Wilson 3311 North West 52 Street Miami, Florida 33142 Michael J. Neimand, Esquire Dade County School Board Lindsey Hopkins Building Miami, Florida 33132
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
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.
