The Issue The issues are whether Respondent, Cynthia A. Foy (Respondent), committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(b), (c), (f), and (i), Florida Statutes (2003),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e) and (5)(d); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made: Respondent, Cynthia Foy, holds Florida Educator's Certificate No. 468641, covering the areas of early childhood education, elementary education, and English to speakers of other languages, which is valid through June 30, 2007. Respondent had been employed with the Hillsborough County School Board 17 years as of the 2002-2003 school term. At all times pertinent hereto, Respondent was employed as a first-grade teacher at Colson Elementary School (Colson) in the Hillsborough County School District (School District). Respondent worked as a teacher at Colson for about five years, beginning the 1998-1999 school year. During her employment in the School District, including her employment at Colson, Respondent never had any disciplinary action taken against her. From 1986 through 1996, Respondent consistently received satisfactory ratings on her annual teacher evaluations, except for one school year when she had three deaths in her family, including the sudden death of her father and of her 38-year-old brother. Respondent's Absences Respondent was absent from work 22 days during the 1998-1999 school year, her first year at Colson. Some of the absences were related to Respondent's health issues. However, most of Respondent's absences were related to her mother's illness. During the 1998-1999 school year, Respondent's mother was confined to a nursing home and had become very ill and frail. Due to her mother's failing health, Respondent wanted to be with her mother, to watch and take care of her. Also, even though Respondent's mother was in a nursing home, Respondent was responsible for taking her mother to her own doctors to make sure she got the proper care. During the 1999-2000 school year, Respondent was absent from work 13.5 days. Respondent's mother died during that school year. As a result, Respondent missed 13.5 days to deal with matters related to her mother's death. During the 2000-2001 and 2001-2002 school years, Respondent was absent from school for 19.45 and 16 days, respectively. These absences were because of Respondent's own health issues. During these school years, Respondent was under an extreme amount of stress due to what she perceived to be a hostile work environment at school. Mary Clark, principal of Colson, was concerned about Respondent's absences and specifically noted this concern on all of Respondent's evaluations, which are at issue in this proceeding. The reasons for Respondent's absences were not disputed, and there is no assertion that the absences were unauthorized. However, Mrs. Clark believed that Respondent's absences resulted in the lack of continuity of instruction and negatively impacted the learning of students in Respondent's first-grade classes. Mrs. Clark testified that because of their concern about their children's progress, some parents requested that their children be transferred from Respondent's class to another first-grade class. Records of such requests and actual transfers were not presented at hearing. However, Mrs. Clark recalled that at least one student had been transferred from Respondent's class. Whether the only reason for the transfer was Respondent's absences is unclear. Notwithstanding Mrs. Clark's concern and belief that Respondent's absences had a negative impact on the students in her class, no basis for this concern was established. To the contrary, during Respondent's tenure at Colson, her students consistently performed well academically as reflected by their scores on the Stanford Achievement Test, a nationally normed test. At all times relevant to this proceeding, the Stanford Achievement Test was used by the School District to assess first-grade students' achievement in the areas of mathematics and reading. At all times relevant to this proceeding, the test was administered to first-grade students at Colson in March or April of each school year. In March 2000, there were four first-grade classes at Colson. Of those four classes, Respondent's students made the highest scores in both the reading section and the math section of the Stanford Achievement Test. The results of the Stanford Achievement Test administered in April 2001, reflect that of the four first-grade classes, the students in Respondent's class made significantly higher scores in both reading and mathematics than the students in the other three first-grade classes. As of April 2002, Colson had six first-grade classes. Of the six first-grade classes, Respondent's class ranked first on the reading section and second on the mathematics section of the Stanford Achievement Test. Respondent's Annual Performance Evaluations The School District utilizes the Classroom Certificated Instructional Effectiveness Evaluation Form (Evaluation Form), which has been approved by the Hillsborough County School Board (School Board) as the instrument by which its teachers are evaluated. Typically, tenured teachers with professional service contracts are evaluated annually, but if the tenured teacher is experiencing difficulties in the classroom, the school administrator may evaluate the teacher more than once a year. At all times relevant to this proceeding, the Evaluation Form consisted of the following categories in which teachers are evaluated: Category I, Planning and Preparation, which includes six subsections or areas; Category II, Professional Behaviors, which includes 12 areas; Category III, Techniques of Instruction, which includes 15 areas; Category IV, Classroom Management, which includes seven areas; and Category V, Instructional Effectiveness, which includes one area. The Evaluation Form requires that the teacher's performance in each area be rated as "satisfactory," "needs improvement," or "unsatisfactory." The highest possible rating is "satisfactory," and the lowest rating is "unsatisfactory." In addition to the areas under the various categories in which teachers are rated, the evaluation requires that the teacher be given an "overall rating" of "satisfactory" or "unsatisfactory." As principal of Colson, one of Mrs. Clark's responsibilities was to supervise and evaluate the teachers at the school. Consistent with that responsibility, Mrs. Clark supervised and evaluated Respondent. Mrs. Clark evaluated Respondent once in the 1998-1999, 1999-2000, and 2000-2001 school years, usually in April. During the 2001-2002 school year, Mrs. Clark evaluated Respondent twice, in December 2001 and in March 2002. Mrs. Clark decided to evaluate Respondent twice in the 2001-2002 school year. Given Respondent's status as a tenured teacher and Mrs. Clark's "concerns over the years with her performance," by evaluating Respondent in the fall, Mrs. Clark would be able to give Respondent notice of the areas in which she still needed to improve. During the period between the fall evaluation and the spring evaluation, Respondent would have an opportunity to work to improve in those areas.2/ The ratings assigned to Respondent's performance on each of the Evaluation Forms are based on data that is collected by Mrs. Clark through her observations and while "walking into [the] classroom on a regular basis." The Administrative Complaint alleged that Respondent's evaluations for the 1998-1999 through the 2001-2002 school years indicated that she needed to improve in specified areas under the following categories: Category II, Professional Behavior; Category III, Techniques of Instruction; and Category IV, Classroom Management.3/ Although Respondent worked at Colson during the 2002-2003 School year, there is no evidence that she was evaluated that year as required by law. If an evaluation was completed for that school year, the Administrative Complaint does not allege that the evaluation indicated any areas in which Respondent needed to improve. Professional Behavior The Administrative Complaint alleges that Respondent received several evaluations from 1999 through 2002 that indicated she needed to improve in the following areas under the Professional Behavior category: 1) observes confidentiality related to students; 2) works cooperatively and supportively with school staff; and 3) responds reasonably to and acting appropriately to constructive criticism. With regard to the first area of concern, "observes confidentiality related to students," none of Respondent’s evaluations for the relevant time period, 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, indicated that she needed to improve in that area. In fact, contrary to the allegations in the Administrative Complaint, all five of Respondent's evaluations for that time period indicate that her performance in that area was rated as "satisfactory." The second area under Professional Behaviors in which it is alleged that Respondent's evaluations indicated she needed to improve is "works cooperatively and supportively with school staff." Respondent's evaluations for her first three school years at Colson--1998-1999, 1999-2000 and 2000-2001--reflect that her performance in the area, "works cooperatively with school staff," was "satisfactory." However, after receiving "satisfactory" ratings in this area for three consecutive years, for the first time, Respondent's evaluation for the 2001-2002 school year indicated that Respondent needed to improve in this area.4/ The evaluations gave no reason for the "needs improvement" rating in the area, "works cooperatively with school staff," on Respondent's December 2001 and April 2002 evaluations. Although no specific basis for the rating is given on the evaluation, it is noted that these evaluations coincide with the area supervisor's observations. The third area under the Professional Behavior category in which it is alleged that Respondent received several evaluations that indicated she needed to improve is the area, "responds reasonably to and acts appropriately upon constructive criticism." Contrary to this allegation, none of Respondent's evaluations indicated that she needed to improve in this area. Rather, Respondent's performance in the area, "responds reasonably to and acts appropriately upon constructive criticism," was rated as "satisfactory" on all five of the evaluations she received during the relevant time period. Techniques of Instruction The Administrative Complaint alleges that Respondent received several evaluations that indicated she needed to improve in the following areas under the Technique of Instruction category: (1) uses instructional time efficiently; presents subject matter effectively; and (3) uses praise appropriately. Respondent's evaluations for the 1998-1999, 2000-2001, and 2001-2002 school years indicated that Respondent needed to improve in the area, "uses instructional time efficiently." As a possible rationale for the rating assigned in the 1998-1999 evaluation, Mrs. Clark wrote on the evaluation, "I am concerned about the slow pace of her lesson as well as the pacing through reading." The evaluations for the 2000-2001 and the 2001-2002 school years gave no rationale for the "needs improvement" rating in the area, "uses instructional time efficiently." Additionally, there is no indication that Mrs. Clark told Respondent the basis of the rating or offered any recommendations as to how Respondent could improve in this area. Upon Respondent's receiving the December 2001 and the March 2002 evaluations, she requested, in writing, a detailed written explanation of the basis for each of the "needs improvement" ratings, which included the area, "uses instructional time efficiently." There is no evidence that Mrs. Clark ever provided the requested explanation. Additionally, the evidence does not establish a basis for the "needs improvement" rating in this area. The next area at issue under the Techniques of Instruction category is, "presents subject matter effectively." Respondent's evaluations for the 1999-2000 and the 2000-2001 school years indicate that Respondent needed to improve in this area. However, neither the evaluation, nor any evidence at the hearing, offered or established a basis for this rating. On Respondent's evaluations for the 1998-1999 school year, and most recently for the 2001-2002 school year, her performance in the area, "presents subject matter effectively," was rated as "satisfactory." Clearly, the "satisfactory" ratings on the December 2001 and March 2002 evaluations, which were for the 2001-2002 school year, marked an improvement over Respondent's ratings in that category for the immediate prior two school years. Finally, it is alleged that the third area under the Techniques of Instruction category in which Respondent's evaluations indicated she needed to improve is, "uses praise appropriately." Respondent's evaluation for 1998-1999, her first year at Colson, indicated that she needed to improve in this area. The next three school years, however, Respondent's performance in this area improved to "satisfactory," as reflected by the four evaluations for the 1999-2000, 2000-2001, and 2001-2002 school years. Classroom Management Under the category, Classroom Management, it is alleged that Respondent's evaluations indicated that she needed to improve in the area, "enhances and maintains students' self- esteem." On Respondent's evaluations for the 1998-1999 and the 1999-2000 school years, her first two years at Colson, Respondent's performance in the area, "enhances and maintains students' self-esteem," was rated "satisfactory." Respondent's evaluation for the 2000-2001 school year indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. It is specifically found that the Administrative Complaint makes no allegations regarding the "unsatisfactory" rating. Accordingly, except for limited purposes, issues related to that rating will not be addressed. Respondent's performance in the area, "enhancing and maintaining students' self-esteem," improved in the 2001-2002 school year from "unsatisfactory" to "needs improvement," as reflected in both her December 2001 and April 2002 evaluations. Instructional Effectiveness The Administrative Complaint does not allege that Respondent's evaluations reflect that she needs to improve in the Instructional Effectiveness category. However, in order to present a more complete picture of Respondent's performance, as rated on her evaluations, this category and Respondent's ratings thereunder are considered. The Instructional Effectiveness category includes only one area, "promotes academic learning which results in improved student performance."5/ This area is concerned with and assesses whether actual learning is taking place as a result of the teacher's instruction. 39. For the 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, Respondent's performance in the area, "promotes academic learning which results in improved student performance," is rated as "satisfactory." Overall Rating Category Respondent's "overall rating" in all five of her evaluations for the 1998-1999, 1999-2000, 2000-2001, and 2001- 2002 was "satisfactory." 6/ Transfer of Student to Respondent's Class (January 2001) In January 2001, a student, F.R., was transferred to Respondent's class from another first grade class because of his behavioral problems. When such a transfer takes place, the teacher to whom the student is being transferred is given prior notice that the student is being assigned to her class. In this instance, that was not done. Respondent was not informed in advance that F.R. was being transferred to her class. On the first day the students returned to school from winter break, F.R. just "showed up" in Respondent's class. Later, Respondent was told that the child was transferred to her class because he was having peer conflict problems, and, as a result, he was acting out. Respondent was told that the student’s acting out behavior included such things as spitting on children, stabbing children with forks, knocking things off the children's desks, and having outbursts. Respondent thought this was a new chance for the child, and she attempted to make the new class assignment work. For example, rather than isolate the child, as his former teacher had recommended, Respondent assigned F.R. to a seat between two very well-behaved little girls, who she knew would never say anything mean to him. Despite Respondent's efforts to work with F.R., he exhibited lashing out and angry behaviors. Due to F.R.'s exhibiting lashing out behavior, Respondent was concerned for the safety of the other students in the class. In January or early February 2001, Respondent shared her concern with Mrs. Clark and asked that F.R. be removed from her class. Mrs. Clark responded that F.R. was just a little boy and said, "Let's see how he does." No offers for assistance were made, and Respondent felt that her request was simply ignored. Later, in January or early February 2001, as Respondent's class lined up and walked to the lunchroom, F.R. deliberately "high stepped and slid on the heels" of the child in front of him. When Respondent asked F.R. to stop, he just laughed, looked at Respondent, and repeated the behavior. Respondent told F.R. to stand out on the side of the line and walk with her. At first he complied, but then he started to get back in the line. Respondent then told F.R., "You're walking with me." After F.R. ignored Respondent, she took his hand so that he could walk with her. F.R. then yanked and pulled Respondent's fingers back, kicked Respondent "really hard" in the upper ankle, and "took off running." Respondent reported the incident to Mrs. Clark and the vice-principal and completed an incident report, reporting her injury and indicating her belief that F.R.'s behavior described in paragraph 44 constituted an assault/battery. After the incident, Respondent again asked Mrs. Clark to transfer F.R. from her class. Mrs. Clark never responded to Respondent's request. In fact, Mrs. Clark never talked to Respondent about the incident. Some time after the February 21, 2001, observation discussed below, there was a second incident where F.R. was physically aggressive toward Respondent. F.R. ran out of the lunchroom to return to the classroom to get the check he had forgotten. Concerned about his past behavior of destroying and "messing up" the other children's belongings, Respondent went to get F.R. Before Respondent could get to the classroom, F.R. had gotten the check and was running back to the lunchroom and toward Respondent. Respondent stuck her arm out to stop him and he continued running around her. Once in the lunchroom, Respondent "pulled" or "grabbed" the check from F.R.'s hand and asked the aides in the lunchroom to call Mrs. Clark. F.R. then seemed to explode, and he began punching Respondent with his fists and biting her. By the time the assistant principal got to the lunchroom, four students had pulled F.R. off Respondent, and Respondent was holding F.R.'s hand. When the vice-principal arrived, she did not discuss the incident with Respondent, but began screaming and told Respondent, "Go, get out of here, leave!" Following the lunchroom incident, Respondent filed another assault report and, for the third time, asked Mrs. Clark to transfer F.R. from her class. After there was no response to her verbal request, a union representative advised Respondent to make the request in writing. Initially, Mrs. Clark denied the request because it was not on the proper form, but once Respondent made the request on the appropriate form, F.R. was transferred from her class. Prior to the requests related to F.R., Respondent has never requested that a student be transferred from her class. Observations of Area Supervisor Ms. Daryl Saunders, an area supervisor for the School District, went to Respondent's classroom on five different occasions between February 21, 2001, and March 21, 2002, twice during the 2000-2001 school year, and three times during the 2001-2002 school year, to conduct observations. On a visit in February 2002, Ms. Saunders did not conduct an observation. With the exception of the first visit to Respondent's classroom, all of Ms. Saunders' visits were for the purpose of observing Respondent. Of the four times Ms. Saunders went to observe Respondent, she actually conducted observations three times. First Observation (February 21, 2001) Ms. Saunders' first visit to Respondent's classroom was on February 21, 2001. At the request of Mrs. Clark, Ms. Saunders went to Respondent's classroom to observe a student, F.R., who had been displaying inappropriate behavior in class and is described above.7/ During the time Ms. Saunders observed F.R., he did not have any outbursts, engage in any physically aggressive behavior, or display any disruptive or inappropriate behaviors. Ms. Saunders noted that the student delayed starting his assignment and took breaks between work, but did not bother any other student. Based on her observation of F.R. and the manner in which Respondent communicated with him, Ms. Saunders wrote in the summary letter to Mrs. Clark, "I believe F.R. is trying to survive in a room where he feels he is not valued." While Ms. Saunders was observing F.R., she also observed Respondent teaching and interacting with the students. Ms. Saunders was particularly concerned with Respondent's frequent verbal reprimands that were audible to the entire class. During the observation, Ms. Saunders also noticed that Respondent seemed to be easily frustrated and that when communicating with students, her voice vacillated between a friendly tone to an aggressive tone. Ms. Saunders expressed this and other concerns, not relevant to this proceeding, to Mrs. Clark in a letter dated February 22, 2001. According to the letter, a verbal reprimand to a particular student in front of the entire class is "damaging to [a] student's self-esteem." Ms. Saunders further noted that "considering the environment, I was surprised there were no behavioral issues while I was present." In the February 22, 2001, letter to Mrs. Clark, Ms. Saunders recommended that "we provide [Respondent] with some assistance so that the classroom environment is more conducive for instruction and learning." As a means of supporting Respondent in this effort, Ms. Saunders recommended that Mrs. Clark "have [Respondent] take two courses through the staff development office." The two classes that Ms. Saunders recommended were Cooperative Discipline and Effective Teaching Strategies. Finally, Ms. Saunders' letter stated, "the Language Arts Frameworks document should be reviewed with [Respondent]." There is no indication that Mrs. Clark discussed these recommendations. Second Observation (May 7, 2001) At Mrs. Clark's request, Ms. Saunders visited Respondent's classroom on May 7, 2001, to observe Respondent's teaching practices. This was about two weeks after Respondent received her evaluation for the 2000-2001 school year, which had rated her performance as unsatisfactory in the area of "enhancing and maintaining student's self-esteem." Pursuant to an earlier suggestion by Ms. Saunders, Respondent allowed herself to be videotaped in order that she could better critique her own behavior in the classroom. To implement this recommendation, the school's media specialist was in the classroom to set up the video equipment on the day of Ms. Saunders' observation. Soon after Ms. Saunders arrived, the media specialist asked Respondent if she should put the tape in the video recorder. Respondent answered, "Please, I don't want to be accused of using three minutes of my time up." Ms. Saunders believed that Respondent's tone of voice was "unprofessional" and that the comment was directed at her. During the May 7, 2001, observation, a student who was speaking to other students in a group had her back to them. Respondent's voice "became aggravated" as she told the student to turn around. Respondent placed her hands on the student's shoulders and physically turned her, but did not do so forcibly. During the May 7, 2001, observation, Ms. Saunders noted improvement in Respondent's communication with her students. In her written summary of the observation dated May 16, 2001, Ms. Saunders wrote: Based on that first encounter [February 21, 2001], I would say my greatest concern was how you communicated with both students and adults. However, this time your demeanor in front of the children was quite different than when I last observed in your classroom. I believe having the video camera present helped to keep you focused on appropriate communication with the children. I was pleased to hear more of a pleasant tone. Ms. Saunders' summary also stated that she counted four times when Respondent appeared to become frustrated and her tone of voice changed to a negative one. Ms. Saunders' summary of the May 7, 2001, observation included the following recommendations: One way to support and assist you regarding classroom environment, instruction and planning would be to have someone review with you, the six domains from the Florida Performance Measurement System. This information is based on research and would be beneficial to again cover. In addition, I recommend that you attend training provided by the elementary education department specifically in the area of writing. Enrollment can be done on-line. . . . There are many courses offered this summer. The Language Arts Frameworks document should also be reviewed. This will provide information about our district's curriculum and the writer's workshop model. Other staff development offerings related to classroom management are offered periodically through the staff development office. I suggest you take one of their courses to assist you with classroom management. You can register on line any time. . . . In the May 16, 2001, summary, Ms. Saunders notified Respondent that she planned to observe Respondent's classroom again soon. Additionally, Ms. Saunders indicated that she expected to see "appropriate and timely instruction and activities based on student need and planned from grade level expectations." Third Observation (December 6, 2001) Ms. Saunders conducted the third observation on December 6, 2001, seven months after the previous observation. Ms. Saunders summarized her observations in a letter dated December 17, 2001. In the letter, Ms. Saunders advised Respondent, for the first time, that the December 6, 2001, observation was part of a plan to assist Respondent with teaching practices. On December 6, 2001, Ms. Saunders arrived at Respondent's classroom at 8:30 a.m. and stayed until 9:10 a.m., when the children left the room for an activity. During the 40-minute observation, Ms. Saunders heard Respondent communicating with students and observed her conducting a review of telling time. Ms. Saunders was complimentary of Respondent's review of telling time. In the written summary to Respondent, Ms. Saunders wrote: You try hard to provide ways for students to remember abstract concepts. You use pneumonic devices, short stories, rhymes and other ways to assist with memorization. By calling the numbers bases and relating the time to the name of the base they passed, students more accurately read time when the short hand falls somewhere between two numbers. This seemed quite effective. Ms. Saunders observed an incident which she perceived to be negative. There was a student who was off task. Respondent directed her attention to the student and asked the student, "Would your mother [or family] be proud of you?" Ms. Saunders believed that when Respondent made this statement, her voice "sounded with disapproval." Ms. Saunders suggested that in the situation described in paragraph 66, Respondent should have "encouraged" proper behavior by asking the student a question that would have him participate so that he becomes on task rather than off task. In another situation, Ms. Saunders observed Respondent interact appropriately and effectively with a student she was reprimanding. In that case, Respondent asked the student, "What time is it?" Before that student could answer, another student shouted out the answer. Recalling Respondent's positive response in that situation, Ms. Saunders stated the following in the December 17, 2001, summary: A boy shouted out the answer and you began to reprimand him. You began to speak, stopped yourself, and continued with this carefully crafted sentence. "Tell me the rule about calling out." It was nice to see you stop yourself in mid-stream, rethink a way to correct this misconduct while still preserving the child's dignity. Based on the December 6, 2001, observation, Ms. Saunders had two areas of concern, only one of which is relevant in this case. That area relates to Respondent's "appropriate use of instructional time." Ms. Saunders' concern is stated in the summary as follows: In my opinion, a second area of concern relates to planning and appropriate use of instructional time. I entered your room at 8:30 and the instructional day begins at 8:00 a.m. Instruction in your room did not begin until 8:44 and the fifteen minutes suggested for calendar math was stretched to 21 minutes. I suggest you utilize time more wisely by beginning calendar math immediately after announcements. Then spend the rest of the morning on shared, guided and independent reading when youngsters are fresh and ready to learn. Beginning instruction nearly 45 minutes after the day begins will allow you to cover all the curriculum. Although the "instructional day," to the extent that term refers to Respondent's teaching a lesson to the class, did not begin at 8:00 a.m., or soon thereafter, there was a reasonable explanation for the delay. First, three students were assigned to Respondent's class that day because their regular teacher was absent. Prior to beginning instruction, Respondent met with those students, asked them their names, assigned them desks, and explained her classroom management system. Respondent's classroom management system involved giving each student a certain number of clothes pins at the beginning of the day. During the school day, the students could lose and/or earn clothes pins, depending on their conduct. The second reason for the delay in beginning the instructional day was that several students in Respondent's class had been allowed to go to the media center to "Santa's Book Fair." As Ms. Saunders noted in her written summary, several of Respondent's students did not return to the classroom from the book fair until 8:36 a.m. In light of the foregoing circumstances, it was reasonable that Respondent did not begin the "instructional day" at 8:00 a.m., or immediately after announcements were made. Admittedly, Ms. Saunders did not know what, if any, instructions or directions Respondent gave to students prior to 8:30 a.m. However, when Ms. Saunders entered Respondent's classroom, the students were actively engaged in various activities. For example, one student was working on math worksheets. Another student was at the computer taking an Accelerated Reading test. Respondent was working with the student at the computer. In addition to Ms. Saunders' concern that the instructional day did not begin until 8:44 a.m., she believed that Respondent spent too much time teaching the "calendar math" activity. Respondent began the activity at 8:44 a.m., and completed it at 9:05 a.m. Even though Ms. Saunders complimented Respondent on her presentation of the activity, as discussed in paragraph 65, she criticized Respondent for spending too much time teaching or reviewing the lesson. According to Ms. Saunders, the "suggested" time for "calendar math" was 15 minutes, but Respondent "stretched" the activity to 21 minutes, which was six minutes longer than the "suggested" time. Ms. Saunders offered no explanation of why or how Respondent's extending the calendar math activity by six minutes was not an "appropriate use of instructional time." At 9:10, a.m., five minutes after the calendar math lesson, Respondent's students had to leave the classroom to attend a health presentation. The five minutes between the end of "calendar math" and when the children left the classroom for the health presentation, allowed time for the children to return to their seats and for Respondent to pass out name tags to the students and have them line up before leaving the room. Ms. Saunders offered no suggestions as to a more appropriate or acceptable way Respondent could or should have used the extra six minutes that Respondent used teaching the calendar math activity. Ms. Saunders summarized the December 6, 2001, observation and made recommendations in a letter dated December 17, 2001. Based on Ms. Saunders' concerns about Respondent's teaching practices, Ms. Saunders recommended that Respondent "have someone review with [her] the six domains from the Florida Performance Measurement System." Also, she recommended that Respondent take training provided by the elementary education department and a classroom management course, both of which were offered "periodically" through the staff development office. Attempted Observation (February 2001) On an unspecified day in February 2002, Ms. Saunders went to Respondent's classroom to conduct her fourth observation. After Ms. Saunders entered the classroom, Respondent told her that she had no notice of the observation. Ms. Saunders then advised Respondent that Mrs. Clark knew that Ms. Saunders would be observing Respondent's class that day, but that "neither of us [Saunders nor Clark] chose to make you [Respondent] aware of the visitation." Respondent espoused the view that she should have received notice of the observation. Ms. Saunders disputed Respondent's view that she should have been given notice and indicated that the observation was part of the assistance plan laid out in May 2001. Respondent replied that an assistance plan could only last 90 days and, thus, this observation could not be part of any such plan. Ms. Saunders then asserted that she could do an observation any time as part of her normal duties. Respondent disagreed and requested that Ms. Saunders provide her with a written explanation of the reason why Ms. Saunders was visiting the class, the instrument she would be using, what she would be observing, and how long she would be staying. As the verbal interchange proceeded, Ms. Saunders thought that Respondent's voice became more aggressive and that she was also getting upset. Because Respondent's students were in the classroom, Ms. Saunders decided to leave the classroom and return at another time. Although students were in the classroom during the verbal exchange concerning whether Ms. Saunders' visit was authorized, there is no evidence that the students heard the conversation. Fourth Observation (March 21, 2002) On March 21, 2002, Ms. Saunders conducted an observation in Respondent's classroom. Upon Ms. Saunders' entering the room, Respondent advised her that she had no notice that Ms. Saunders was coming to her class. Respondent also told Ms. Saunders that the students were taking a school-wide writing assessment. Ms. Saunders acknowledged that, but still indicated that she would be seated and conduct an observation. Respondent then approached Ms. Saunders and asked why she was in the class, what instrument she was using, and what she was observing. Ms. Saunders reiterated her prior position that she was there as part of the assistance plan and that she would be taking anecdotal notes. Respondent then asserted her earlier position, that an assistance plan was only for 90 days. Consistent with Ms. Saunders' previous recommendation that Respondent tape herself in class as a way to critique herself, Respondent told Ms. Saunders and the class that she was turning on the tape recorder. Ms. Saunders began the observation at or about 8:58 a.m., and ended it at 9:16 a.m. In all, the observation lasted only about 18 minutes. During most of that time, Respondent's students were completing a school-wide writing assessment. As students finished the writing assessment, Respondent gave them books to read silently, while the other children continued to work on the writing assessment. Ms. Saunders summarized the March 21, 2002, observation in a letter dated April 18, 2002. Due to the duration of the observation, 18 minutes, and the fact that the students were taking a writing assessment, Ms. Saunders reported only a few specific observations. None of those observations concerned or were related to Respondent's teaching techniques or classroom management.8/ In the April 18, 2002, letter, Ms. Saunders summarized the March 21, 2002, observation and made conclusions. In the letter, Ms. Saunders stated she continued to see the "same behaviors" from Respondent. She further stated, Each time I visit your classroom I continue to see the same behaviors from you. Though discussion has occurred regarding ineffective practices, visitation were made to a number of other classrooms at Yates Elementary, suggestions regarding inservice courses have been made, yet your practices have not changed. I continue to see an emphasis on students being silent unless called upon. I continue to hear you speak gruffly to students. I continue to see you punish students for very minor infractions like wiggling or whispering. I continue to see you isolate students from the group. I continue to see you go over concepts, like vocabulary orally in order for students to memorize things rotely. I continue to see calendar math exceed the 15 minutes it is intended to occupy of the mathematics instructional time. I continue to see only one student engaged at a time. It was the intention of the assistance plan to have you reevaluate some of your ineffective practices and work to make some changes. I have yet to witness any of that nor do I think you are even trying to make strides toward improvement. Despite her recitation of areas in which Respondent still needed to improve, Ms. Saunders offered no recommendations in the April 18, 2002, summary letter to assist Respondent. However, Ms. Saunders stated that she "plan[ned] to make an unannounced observation in [Respondent's] class again soon," but she never did. The conclusions in Ms. Saunders' April 18, 2002, letter are inconsistent with some of her earlier observations discussed in paragraphs 59, 65, and 68 above. Moreover, there was no connection between the conclusion Ms. Saunders articulated in the summary letter and what she observed on March 21, 2002. Area Supervisor's Criticism of Respondent's Reprimand Method Ms. Saunders was critical of the way Respondent reprimanded students. During Ms. Saunders' observations, Respondent sometimes would call the name of the child who was being reprimanded and tell him what he should or should not be doing. At the hearing, Ms. Saunders testified to maintain order in the classroom, Respondent should have used "public praise" and "private criticism." Notwithstanding this position, Ms. Saunders admitted that this method or principle is not an established policy and procedure of the School District. While Ms. Saunders testified that the "public praise, private criticism" principle is simply an "educational belief that many people subscribe to," she acknowledged that other models exist. There was no evidence presented at the hearing that Ms. Saunders ever specifically discussed the "public praise, private criticism" philosophy that she believed Respondent should have used in the classroom. Observations of the School Principal Mrs. Clark frequently observed Respondent in the classroom as part of her routine of visiting all the classrooms at Colson. During her observation of Respondent, Mrs. Clark saw and heard Respondent sometimes use a "harsh desist" in reprimanding students. According to Mrs. Clark, the term "harsh desist" means "harshly reprimanding a child to stop doing something." Mrs. Clark described an example of a "harsh desist" by Respondent's saying, "Shhhh" to the class in a loud way, and talking to children in a way that was "derogatory." Mrs. Clark believed that the children were impacted by the way Respondent spoke to them. She based this belief on the expressions she saw on some of the children's faces. Mrs. Clark testified, "In some instances, they [the students] would cringe." Mrs. Clark testified that she talked to Respondent about her "harsh desist," but Respondent did not change this classroom management method. These discussions were not documented, and no reference to this issue was ever noted on Respondent's evaluations. The record fails to establish when or how often Mrs. Clark observed Respondent engaging in a "harsh desist," to whom any particular "harsh desist" was directed, and if and how the "harsh desist" affected the student. Mrs. Clark testified that she observed situations in which she observed Respondent talk to students in a derogatory manner. In one instance, the student referred to in paragraph 41 above, who had been transferred to Respondent's class because of behavioral problems he was having in another class, left Respondent's classroom without permission and was returned to the room by Mrs. Clark. The student told Mrs. Clark that he had left the room to look for a pencil or scissors. Mrs. Clark asked Respondent if the student could borrow one from another student or if she would give him the tool that he needed. Respondent said she would not give him the particular tool. Respondent continued, "He breaks them all the time. He doesn't deserve them." Although students were in the classroom when Respondent made the comments, there is no evidence that they heard the comments. The other incident in which Mrs. Clark described Respondent as using derogatory language when talking to a student involved T.B., a student in her class. On an unspecified date, Respondent was walking down the hallway with her students, taking them to the buses. Respondent was holding T.B. by his arm, presumably for misbehaving. At the time, Mrs. Clark was in the hallway, but some distance away. When Respondent saw Mrs. Clark in the hallway, she told T.B., "If you don't behave, you're going to get a referral to that lady over there," pointing to Mrs. Clark. Mrs. Clark testified that there is nothing wrong with reminding a child that he could have to go the principal's office if he or she misbehaves, "if it [is] handled in the appropriate way." The clear implication was that the manner in which Respondent handled the situation described in paragraph 98 was inappropriate. However, no evidence was presented to establish the appropriate way to remind the student that his behavior needs to improve and that there are consequences for misbehavior. Recommendations of Mrs. Clark Respondent's 2000-2001 evaluation indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. To address this rating, Mrs. Clark issued a letter to Respondent which made two recommendations to assist Respondent in improving in this area. The letter is referred to on the evaluation and was given to Respondent on or about April 24, 2001, the day she received the 2000-2001 evaluation.9/ The first recommendation was that Respondent attend a Cooperative Discipline Workshop that was offered by the School District or "something similar to that that was offered by the district." The other recommendation was that Respondent go and observe behavior management in classrooms at other schools. No specifics were given as to who would schedule the time, place, and number of observations. With regard to the classroom management course, no information was provided as to what, if any, approval would be needed prior to taking the course. In neither instance was a time specified that Respondent would have to complete the observations and/or the classroom management course. During Respondent's tenure at Colson, the only written recommendations she received from Mrs. Clark were the two made in the letter issued to Respondent. As reflected on the 2000-2001 evaluation, Mrs. Clark issued the letter to address the "unsatisfactory" rating Respondent received in that evaluation. In such a case, a tenured teacher who receives an "unsatisfactory" rating, a letter and/or form of assistance is required to be provided pursuant to Section 1012.34(3)(d), Florida Statutes. Respondent's Efforts to Comply With Assistance Plans and/or Recommendations In an effort to comply with Mrs. Clark's recommendation that she observe other classes, Respondent asked several teachers on her first-grade team, including one who was nationally-certified, if she could observe them. Some of these teachers had been held out by Mrs. Clark as using behavioral models that were ones that Respondent might use in her class. All of the teachers agreed to allow Respondent to observe their classes, but Mrs. Clark denied Respondent's request to observe any of the teachers at Colson. Eventually, someone, likely Ms. Saunders or Mrs. Clark, scheduled an observation for Respondent at Yates Elementary School (Yates). On an unknown date between May 7, 2001, and December 6, 2001, Respondent went to Yates to observe several first-grade classes pursuant to Mrs. Clark's April 24, 2001, recommendation. Ms. Saunders accompanied Respondent to the class for the observations. As Respondent and Ms. Saunders went to observe in the various classrooms, it appeared to Respondent that the teachers in those classrooms had no prior knowledge of the observations. During the observations at Yates, Ms. Saunders directed Respondent to write down anything positive she saw regarding classroom management, as well as anything she found pedagogically unsound.10/ Ms. Saunders referenced and discussed Respondent's observations at Yates in the summary letter dated December 17, 2001. In that letter, Ms. Saunders recalled the following: During the visit to Yates, we witnessed some wonderful classroom strategies and we also saw some things that perhaps would not be helpful. I know, based on our conversation, that you saw some things that you might like to try implementing. I hope that you will continue to reflect on that day and try some of the things you think might work well in your room. Ms. Saunders also noted in the December 17, 2001, letter that at the time of the visit to Yates, she asked Respondent to write a plan that included trying or applying some of the classroom management strategies that they witnessed. Respondent complied with this directive as reflected in Ms. Saunders' letter in which she stated, "A copy of that plan was to be given to Mrs. Clark[,] and I am aware that you submitted something to her." As requested by Ms. Saunders, Respondent submitted a classroom management plan to Mrs. Clark based on what she observed at Yates that she could implement in her classroom. However, there is nothing in the record to indicate whether Respondent's plan was ever reviewed or critiqued by either Mrs. Clark or Ms. Saunders. After Mrs. Clark recommended that Respondent take a classroom management course, she attempted to do so, but was unsuccessful. Respondent's initial failure to take the classroom management course after the April 2001 evaluation, was based on a misunderstanding, miscommunication, and/or no communication between Mrs. Clark and Respondent. Later, Respondent's efforts to take a classroom management course were thwarted by Mrs. Clark. The misunderstanding, miscommunication, and/or lack of communication between Mrs. Clark and Respondent is evident. Almost eight months after Mrs. Clark initially recommended that Respondent take a classroom management course, she wrote in the "comment section" of Respondent's December 19, 2001, evaluation that she was "not sure" if Respondent had taken the course. In response, Respondent wrote on the same evaluation, "It was my understanding that a workshop would be scheduled for me during the school year." Mrs. Clark testified that Respondent had "repeatedly kept asking" for which workshop Mrs. Clark had signed her up. Based on the apparent misunderstanding discussed in paragraph 109, Respondent selected at least two different classroom management courses. She then requested Mrs. Clark's consent, because the course required payment of a fee and a substitute teacher for the time Respondent would be attending the course. Both courses were approved by the Hillsborough County School Board. Although in the 2001-2002 school year, Respondent made several requests to take a management course, Mrs. Clark denied all the requests, indicating that no money was available. In one case, a person from the School District office called Respondent and told her that no money was available for her to attend the courses she had requested. The payment for one of the courses was about $135.00 and required that a substitute teacher be hired to cover Respondent's class on the day of the course. Having been unsuccessful in obtaining permission or approval to attend two School Board-approved courses, on September 20, 2002, Respondent wrote an e-mail letter to Mrs. Clark regarding Respondent's efforts to take a classroom/behavior management course. In the e-mail, Respondent indicated that she had looked to take the recommended course on a professional study day (when students are not present), but had not found any such course being offered. In light of Mrs. Clark's and/or the School District's failure to approve a course for Respondent to take, Respondent requested that Mrs. Clark provide Respondent with the name of the classroom/behavior management course that Mrs. Clark wanted her to take and the date and time of such course. There is no evidence that Mrs. Clark ever responded to Respondent's September 20, 2002, e-mail or ever provided Respondent with the name of a classroom management course to attend. Moreover, no evidence was presented that the School District actually offered the recommended classroom management course during the relevant time period. Despite the recommendation that Respondent take the classroom/behavior management course, she was not provided with the assistance and in-service opportunity to help correct or improve the noted performance deficiency. Nonetheless, through her own effort, she increased her performance area, "enhances and maintains students' self-esteem," from "unsatisfactory" in the 2000-2001 school year to "needs improvement." Incidents Involving Respondent and School Principal and Staff First Incident (January/February 2001) In January or February 2001, during the lunch break, Vicki Davis, one of the other first-grade teachers, was sitting near Respondent and noticed that Respondent was writing in a notebook. Ms. Davis then asked Respondent, "What are you doing? Writing about kids or something?" Respondent did not elaborate, but told Ms. Davis that it was a behavior book. Ms. Davis was concerned because she saw her name in the book, but beyond that, she could not say what was in the book. Exactly what Respondent was writing in the "behavior book," is unknown, but this incident occurred soon after the student referred to in paragraph 41 was transferred from Ms. Davis' class to Respondent's class. Respondent implied that she was writing down observations about the child. Even though the precise contents of the "behavior book" were not clearly visible, Ms. Davis felt uncomfortable when she saw what she believed to be her name in the "behavior book." Second Incident (July 2001) In July 2001, when school was not in session, Respondent telephoned the school and asked Mrs. Clark to provide her with a report that Ms. Saunders had prepared. Before leaving the school, Mrs. Clark advised Jennifer Connolly, her secretary, that Respondent was coming to get the report and told Ms. Connolly to put the report in Respondent's mailbox. When Respondent arrived at Colson, she checked her mailbox, but did not see the report that she had come to retrieve. At the time, no one was in the front office area so Respondent went into Mrs. Clark's office and looked on her desk for the document. While Respondent was in Mrs. Clark's office looking through papers in an effort to locate Ms. Saunders' report, Ms. Connolly saw Respondent and asked why she was in the office. After Respondent explained that she was looking for Mrs. Saunders' report, Ms. Connolly told Respondent the report was in Respondent's mailbox and to leave Mrs. Clark's office. Ms. Connolly left the office and walked down the hall. After Ms. Connolly left Mrs. Clark's office, Respondent turned out the light in Mrs. Clark's office and closed the door to the office as she exited. By the time Respondent got to her mailbox, Mrs. Saunders' report was on top of the stack of mail in Respondent's mailbox. After being informed about Respondent's going into her office, Mrs. Clark contacted the School District's Professional Standards Office. An investigation was conducted and based on the findings, a letter was issued to Respondent. It is unknown if the letter was a warning, reprimand, or other type of communication since the letter was not offered as evidence at this proceeding. There is no indication that Respondent was doing anything in Mrs. Clark's office other than looking for the report that she came to the school to retrieve; the report that Mrs. Clark had expected her to pick up. Nonetheless, Respondent's decision to go into the principal's office, without permission, reflected poor judgment on her part. This, however, was an isolated incident and is not indicative of Respondent's usual judgment. Except for this incident, Respondent's record indicates that she usually exercised good judgment as shown by her evaluations for the relevant time period. For example, for the three school terms immediately prior to the July 2001 incident, Respondent's performance in the area related to a teacher's judgment under the Professional Behavior category, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory."11/ The only evaluation that indicated Respondent "needed to improve" in that area was the December 2001 evaluation, the first evaluation she received after the July 2001 office incident. However, in Respondent's very next evaluation dated April 24, 2002, her performance in the area, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory." Third Incident (2001-2002 School Term) In or about the 2001-2002 school year, Respondent brought a tape recorder to a team meeting. When Ms. Davis, one of the team members, saw the tape recorder, she felt uncomfortable and told Respondent to turn off the tape recorder.12/ Ms. Davis knew that "something was going on between [Respondent] and Mrs. Clark" and seemed to suspect that Respondent's bringing the tape recorder into the meeting was somehow related to that. However, Ms. Davis did not want to be a part of that and told Respondent, "This [meeting] is not about anything. We're working together as a team." Respondent immediately complied with Ms. Davis' request and turned off the tape recorder. After that one incident, Respondent never again brought a tape recorder to a team meeting. Fourth Incident (February 25, 2003) On or about February 25, 2003, as part of her usual routine of visiting classrooms, Mrs. Clark went to Respondent's classroom, entering from the back door. At the time, Respondent was sitting with two students, working with them. When Respondent saw Mrs. Clark, she got up from her seat and walked over to where Mrs. Clark was standing. Respondent then asked Mrs. Clark, "Did you leave right after us?" Mrs. Clark correctly understood, and Respondent confirmed that the question referred to Respondent's grievance hearing that was held the previous day and attended by Respondent and her attorney, as well as Mrs. Clark and the area supervisor. Respondent apparently thought Mrs. Clark indicated that she had left immediately after the grievance hearing. Respondent challenged Mrs. Clark and indicated that Respondent and her attorney had waited outside for Mrs. Clark for 15 minutes. Respondent then moved closer to Mrs. Clark and whispered in her ear. Mrs. Clark understood Respondent to say, "You're a liar. You're devious. There is a God. I'm not through with you yet." Respondent denied that she made these statements. Given the conflicting testimony of Mrs. Clark and Respondent, both of whom appeared to be credible witnesses, there is no clear and convincing evidence that Respondent made the statements. Nonetheless, it is found that Mrs. Clark understood and believed that the statements in paragraph 130 were the ones Respondent whispered to her. Mrs. Clark responded to Respondent's statements in a voice that was not a whisper by asking, "You're not through with me yet?" According to Mrs. Clark, during this incident, she repeatedly kept turning to Respondent and kept telling her, "If you have something to say to me, we can meet in my office." There were children in Respondent's classroom during the incident described in paragraph 130, but Mrs. Clark's credible testimony was that the children could not hear Respondent's comments. Mrs. Clark described the comments Respondent whispered in her ear as "quite upsetting." While Mrs. Clark might have been upset, her conduct clearly indicated that she did not feel threatened by Respondent's comments. After the exchange between Respondent described in paragraphs 130 and 131, Mrs. Clark stayed in Respondent's classroom to continue her visit and look at the children's work. In fact, Mrs. Clark took time to talk to a student in the class who she believed was not working. Later, she asked the children about a large crayon that was on the floor. At some point during the visit, Respondent noticed that Mrs. Clark was holding something in one of her hands, both of which were behind her back. Believing that the object in Mrs. Clark's hand was a tape recorder, Respondent grabbed Mrs. Clark's hand and splayed it open in an attempt to completely display the object. As Respondent grabbed Mrs. Clark's hand, she asked Mrs. Clark if she had a tape recorder and if she were recording Respondent. Mrs. Clark stated that the object she was holding was a two-way radio. Even though the object Mrs. Clark was holding was a two-way radio, Respondent did not believe Mrs. Clark's explanation. After or as Respondent grabbed Mrs. Clark's hand, Mrs. Clark told Respondent, "Get your hands off me! Get away from me!" Respondent believed Mrs. Clark was going to strike her so she moved back, away from Mrs. Clark. Undoubtedly, Respondent's conduct, described in paragraph 134, grabbing her supervisor's hand, was inappropriate, unprofessional, and disrespectful. However, based on the record, this was clearly an isolated incident. Moreover, this conduct does not constitute any of the statutory or rule violations alleged in the Administrative Complaint. Mrs. Clark then left Respondent's classroom and continued visiting other classrooms. After completing her routine classroom visits, Mrs. Clark called the School District office to report the February 25, 2002, incident in Respondent's classroom. Respondent also called the School District office to report the incident. In addition to calling the School District Office, Respondent called a friend who was a retired teacher and reported that she believed Mrs. Clark had tried to record her and asked for advice on what she should do if Mrs. Clark returned to her room. The following day, an investigator with the School District went to the school to investigate the matter. School District Request for Fitness for Duty Evaluation By letter dated April 30, 2003, the School District referred Respondent to Dr. James Edgar, M.D., a psychiatrist, for an evaluation. In the referral letter, Linda Kipley, the general manager of the School District's Professional Standards Office, stated that the referral was due to the School District's "concerns for a pattern of personal and professional behavior which has negatively impacted her capability and competence to perform the duties and responsibilities of teaching." Ms. Kipley's letter went on to say, "After reviewing our most recent investigative report, there is a question if she is fit for her teaching responsibilities and to teach minor children." Also, Ms. Kipley requested that Dr. Edgar provide a written report of his assessment of Respondent's "capability to make sound professional judgments and her capability to safely instruct children." Opinion of James Edgar, M.D. Dr. James Edgar, who was qualified as an expert in the field of psychiatry, conducted an independent medical (psychiatric) evaluation of Respondent. Based on information provided to Dr. Edgar by School District staff, there were questions raised about Respondent's ability to safely instruct minor children and about her general mental health status. Along with the request for the evaluation, the School District provided Dr. Edgar with copies of all of Respondent's evaluations since she was employed by the School District and the February 22, May 16, and December 17, 2001, letters/reports from Ms. Saunders. For some reason, Ms. Saunders' last report dated April 18, 2002, and discussed in paragraphs 85 and 86, was not provided to Dr. Edgar. Dr. Edgar found that Respondent had normal motor activity and normal facial expressions; that she was polite and her appearance was neat; and that she was calm although anxious (which Dr. Edgar indicated was a natural reaction under the circumstances of an evaluation being ordered by her employer). He also found that Respondent's intelligence was normal, her memory was intact, her senses were good, her affect was appropriate, and there was no evidence of hallucinations. Notwithstanding the foregoing conclusions, in the "summary and recommendation" section of his report, Dr. Edgar opined, I do not feel [Respondent] is currently capable of safely instructing young children." As the basis for this conclusion, Dr. Edgar stated that when Respondent is stressed by routine events, such as constructive criticism, her ability to keep things orderly and controlled is impaired and she becomes anxious and depressed. He further stated that the combination of Respondent's "major depression and pre-existing personality disorder interfere with the usual psychological functions (i.e. judgment and problem solving ability, emotional stability, ability to conform to societal standards of behavior, interpersonal skills, integrity, responsibility, ability to cope with stressful situations, and decision making in a crisis). In the "summary and recommendation" section of Dr. Edgar's written report, he prefaces the above-quoted opinion by stating, "This summary is provisional because I have not had an opportunity to review medical records or mental health records." At the end of the report, Dr. Edgar states that "I may amend my report after reviewing the previously mentioned records." As of the date of this proceeding, Dr. Edgar had not yet reviewed any of Respondent's medical records and mental health records, although Respondent advised him that she was being treated for depression by a psychiatrist and was in counseling with a licensed mental health professional. Contrary to the School District's concern for Respondent's "competence to perform the duties and responsibilities of teaching," Dr. Edgar testified that his report made no finding that Respondent was incompetent to teach. Opinion of Gerald Mussenden, Ph.D. Dr. Gerald Mussenden was qualified as an expert in the area of psychology. On September 5 and 12, 2003, Dr. Mussenden conducted a comprehensive evaluation of Respondent to determine her overall mental functioning (i.e., whether she was mentally stable, well adjusted, and/or if she is a threat to herself or others). As part of the evaluation, Dr. Mussenden administered, among other instruments, the Child Abuse Potential Inventory, which has been developed and standardized since 1982. The Child Abuse Potential Inventory is valid in terms of content validity, construct validity, and predictive validity and is a tool used by psychologists who do testing specializing in abuse propensities. Based on the results of the Child Abuse Potential Inventory, Dr. Mussenden concluded that Respondent had no child abuse potential characteristics and was not a danger to children. Moreover, Dr. Mussenden opined that Respondent was emotionally stable, had good skills by which to relate and interact with others, and had no problems or difficulties that would endanger others around her. Dr. Mussenden's evaluation report accurately notes that at the time of the evaluation, Respondent was under the treatment of a psychiatrist and in counseling with a licensed mental health counselor. Dr. Mussenden's opinion is that this course of treatment contributed to Respondent's mental health status at the time of the evaluation. In his report, Dr. Mussenden states, "Due to their success [the psychiatrist and mental health counselor], [Respondent] is relatively well adjusted and without signs of mental difficulties." Dr. Mussenden's credible testimony was that a person can suffer from depression and still be competent to handle one's duties as a teacher. When Respondent was evaluated by Dr. Mussenden, she was taking medication for depression. The purpose of such medication is to help people suffering from depression become well-adjusted. The fact that there was no evidence that Respondent was suffering from depression during the September 2003 evaluation indicates that the medication she was taking was effective in that it masked any depression that may have been present. Dr. Mussenden saw Respondent within 60 days of the hearing and based on that visit, he did not change his opinion that Respondent posed no risk of harm to children.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 12th day of April, 2006.
The Issue The issues to be determined are whether Respondent violated section 1012.795(1)(j), Florida Statutes (2013), and Florida Administrative Code Rule 6A-10.081(3)(a) and (3)(e) with respect to her treatment of an autistic child in her classroom. If so, then the appropriate penalty for her conduct must be determined.
Findings Of Fact Respondent is a teacher in the State of Florida. She holds Florida Educator’s Certificate 952211, covering the areas of elementary education, English for speakers of other languages (ESOL), and exceptional student education. Respondent’s certificate is valid through June 2016. At all times relevant to the allegations in the Administrative Complaint, Respondent was employed as an autism spectrum disorder (ASD) teacher at Maplewood. Ms. Newton has been involved in teaching in Marion County since 1999. She started as a teaching assistant, then substitute taught while putting herself through school, then obtained her bachelor’s degree in varying exceptionalities and began teaching full time. She also received her master’s degree in 2007 in the area of interdisciplinary studies in curriculum and instruction. With the exception of an internship at Oak Crest Elementary, all of Ms. Newton’s teaching experience was at Maplewood. Her performance evaluations from the 2004-2005 school year through the 2012-2013 school year all contain at least satisfactory ratings, with the majority of the recent evaluations rating her as highly effective or outstanding, depending on the evaluation tool used. The majority of her evaluations reference her excellent classroom management skills. At the beginning of the 2013-2014 school year, Maplewood received an entirely new administrative team. Laura Burgess was the new principal, Claire Smith and Brian Greene were newly- appointed assistant principals, and Doris Tucker was the new dean. The new administration started at Maplewood in July, approximately a month before the beginning of the school year. Ms. Newton had been teaching and continued to teach autistic students. At the beginning of the school year, she was assigned six students in her self-contained classroom, and had the assistance of one teacher’s aide, Susanne Quigley. Ms. Newton believed strongly in the value of a structured, disciplined classroom, especially when dealing with autistic students. She believed that establishing the rules and routine for the classroom created an environment where any child could be taught, but that without structure and adherence to routine, chaos would result and impair the learning process. Her classroom management skills were well known and in past years, well respected. Both Ms. Newton and Ms. Quigley testified about the assistance she was asked to give to other teachers and students with respect to class management and discipline. Their testimony is credited. After the start of the school year but before September 3, 2013, Laura Burgess, Maplewood’s principal, was notified by the Social Services Education Team (SET team) for the District that Maplewood would be receiving a new student, B.L., who had moved to the area from North Carolina. She also received an Individualized Education Program (IEP) for B.L., which listed his disability as autism spectrum disorder. B.L.’s IEP also indicated that he had problematic behaviors that could impede his learning, including oppositional defiance disorder, tantrums, attention deficit disorder, and extreme violence. The documentation provided to her did not include a behavioral intervention plan, and Ms. Burgess was concerned that B.L.’s placement at Maplewood did not match the needs identified in the IEP. However, she determined that Ms. Newton’s class would be the best placement for B.L., because Ms. Newton had a reputation for having a structured and disciplined classroom, and perhaps B.L. would benefit from that kind of structure. Ms. Burgess saw Ms. Newton that morning and told her that she would be receiving a new student. Ms. Burgess described the issues with the child, and said that if he ended up in Ms. Newton’s class, she should document his behaviors in case he needed to be moved to a therapeutic unit for behaviors (TUB unit). Ms. Newton understood from the conversation that Ms. Burgess believed B.L. should be in a TUB unit, which did not exist at Maplewood. However, later in the day Ms. Newton and her aide, Susanne Quigley, were supervising her students on the playground when she was approached by Claire Smith, one of the new assistant principals. Ms. Smith informed her that B.L. would indeed be placed in her class and gave her a copy of his IEP, with certain portions related to his behavior highlighted. Ms. Newton expressed surprise at the placement, thinking that he would be going to the TUB unit. Ms. Smith had met with B.L. and his mother earlier in the day and felt that he could benefit from Ms. Newton’s structured classroom. She also talked to Ms. Newton about documenting his behaviors should a change be necessary. Ms. Newton was concerned about the addition to her classroom because she already had six autistic students and, with respect to B.L.’s identified behaviors, “we’ve never had a child like that at Maplewood.” Nonetheless, B.L. was placed in her classroom on September 3, 2013. Consistent with her usual practice, Ms. Newton began to teach B.L. the rules of her classroom. For the first two days, there were no major problems. There were instances where B.L. did not want to comply with the directions she gave him or follow the rules of the classroom, but with some coaxing, she was able to get him to comply. Ms. Newton did not see the need to call the front office for assistance on either of the first two days B.L. was in her classroom, but then, Ms. Newton had never called the front office for assistance with any child. At the end of the first day, she had the opportunity to speak with B.L.’s mother briefly when she picked him up from school. After Ms. Newton introduced herself, B.L.’s mother basically confirmed the contents of the IEP. According to what B.L.’s mother told Ms. Newton, B.L. had lived previously with his father and there had been issues both at school and at home with disruptive and violent behavior. Ms. Newton told her they were going to “wipe the slate clean” and asked if there was anything that B.L.’s mother wanted Ms. Newton to work on, and she identified B.L.’s behaviors as an area for improvement. Ms. Newton told B.L.’s mother that Maplewood was a great school, and “that would happen.” B.L.’s third day at Maplewood did not go well. At the very beginning of the day, B.L. would not follow directions to stand with the rest of his classmates at their designated spot after getting off the bus. Instead, he plopped down in the middle of the walkway, in the midst of the area where children were trying to walk to their classes. He had to be coaxed all along the way to get to class, and once there, refused to unpack and sit down. He refused to follow any direction the first time it was given, instead responding with shuffling feet, shrugging shoulders, talking back, calling names, and wanting to lay his head down on his desk instead of participate in class. When it was time for the students in the class to go to art, Ms. Quigley normally took them while Ms. Newton attended to other responsibilities. According to Ms. Quigley, B.L. did not want to go to art class, and had to be coaxed to walk with the others to the art room. Once he got there, he did not follow directions, did not want to participate, and did not want to move from the back of the room. Normally, Ms. Quigley might have let him stand and watch if he remained quiet, but he was not being quiet: he was touching things and grumbling and getting angry. Ms. Quigley knew from prior experience that students with autism tend to mimic the bad behavior exhibited by others, and one child’s actions could cause a chain reaction of bad behaviors. She felt that if she did not remove him from the art room, the other children would also start to misbehave, and she did not want them to follow B.L.’s example. Ms. Quigley took B.L. out of the art classroom and went back to the classroom in search of Ms. Newton. Ms. Newton was not in the classroom, as she was attending to other responsibilities. Ms. Quigley then took B.L. to the office, but again, found no one there to assist her. B.L. was not happy during any of these travels, and again had to be coaxed all along the way. Once she got back to the art class, Ms. Quigley had B.L. stand in the back of the classroom. She was trying to watch him and also attend to the other students, but one of the other students knocked everything off the art table, so Ms. Quigley added clean-up to her responsibilities. At that point, Ms. Newton came into the art room. Ms. Newton took both B.L. and the other misbehaving child back to the classroom while Ms. Quigley stayed with the remaining students for the rest of the art period. What remained of the afternoon became a battle of wills between Ms. Newton and B.L.: Ms. Newton was trying to establish the ground rules for behavior in her classroom with B.L., and B.L. was determined not to follow those rules. The result was Ms. Newton spending the bulk of the afternoon with B.L. and Ms. Quigley attending to the needs of the other students in the class. For at least part of this time, Ms. Newton placed B.L. in time-out, with directions that he was to stand still with his hands to his sides. For Ms. Newton, the purpose of time-out is for a student to gather his or her thoughts, to get himself or herself together, and to remind the student of the rules of the classroom. She wants a student to have time to think about his or her actions, and wants to discuss with the student the nature of the problem presented by his or her behavior and how the problem should be resolved. If a child stops behaving, time-out may begin again. Ms. Newton put B.L. in time-out because he was not following her directions to him. She talked to B.L. about the rules of the classroom and where they are posted in the room, and told him what he needed to do. B.L. is very verbal and able to talk about his issues. Ms. Quigley described him as very high-functioning and not on the same level as other children in the classroom. Instead of responding appropriately, B.L. was calling names, talking out, and using curse words; flailing his arms and legs, wrapping himself in his sweatshirt so that his arms were in the body of the sweatshirt as opposed to in the armholes, and covering his face so that he could not see obstacles in his environment; wandering around instead of staying still; kicking things in the classroom, including a box and a door; throwing objects on the floor, rolling around on the floor and spitting; and generally resisting any instruction. During the course of the afternoon, Ms. Newton attempted to show B.L. what she wanted from him. For example, she demonstrated how she wanted him to stand in time-out by holding his arms in the area close to his wrists to demonstrate standing still with his hands down. B.L. repeatedly resisted this direction and tried to break away from Ms. Newton. B.L. was not only resisting her, but at times appeared to be butting his head against her and kicking her. He was at other times rubbing his hands against his face. Ms. Newton told B.L. he needed to stop rubbing his hands over his face, or she would remove his glasses so that he did not hurt himself with them. When B.L. continued his resistant behaviors, she removed his glasses and eventually put them in his backpack. B.L. continued to lightly slap his face with both hands. Ms. Newton did not physically intervene, but testified that she gave B.L. consistent verbal direction to stop hitting himself. Although he clearly continued to slap his face for some time, Ms. Newton testified that the movement was more like a pat than a slap, and she did not believe that he was hurting himself. Her testimony is credible, and is accepted. Ms. Newton also told B.L. to quit flailing his arms and putting his jacket over his head. She was concerned that he could hurt himself given that he was standing (not still, as directed) near the corner of a table. Ms. Newton told him if he did not stop she would take his jacket from him. He did not and she removed his jacket and placed it on a table in the classroom. She did not give B.L. the jacket back when he wanted it, because she wanted B.L. to understand that there are consequences to not following directions. With approximately 30 minutes left to the school day, Ms. Newton asked Ms. Quigley to call the front office for assistance. Ms. Tucker, the dean at Maplewood, came to her classroom. Before Ms. Tucker’s arrival, Ms. Newton was trying to get B.L. to stand in the back of the room. He was not following directions and had gone over to sit in a chair near the center of the room. The chair was near a free-standing easel with teaching implements attached to it, and it is reasonable to assume, given B.L.’s behavior, that Ms. Newton did not want him near the easel because of the potential for harm. Each time he went to the seat, Ms. Newton directed him away from it. When Ms. Tucker arrived, he once again sat in the chair he had been directed not to use. Ms. Newton removed him from the chair and told him again he was not to sit in it. B.L. immediately went to another chair in the same vicinity and sat down. Ms. Newton, took him by the arm and away from the chair, and took him out of the room. From Dean Tucker’s perspective, B.L. was just trying to sit in a chair. From Ms. Newton’s perspective, this was just one more instance in a litany of instances where B.L. was refusing to follow her directions. Dean Tucker was outside the room with B.L. when the door closed. B.L. starting kicking and beating on the door, screaming that he wanted in, and opened the door. Ms. Newton placed her arm on his chest and pushed against him to keep him from entering the room, and asked Ms. Tucker to lock the door from the outside, which she did. B.L. continued to kick and beat at the door, and Dean Tucker called assistant principal Greene to assist her. When Mr. Greene arrived, B.L. was still kicking at the door. He kept saying that he wanted in the classroom but would not say why. Eventually Mr. Greene was able to calm B.L. enough to find out that he wanted his backpack. Because it was close to the end of the day, Mr. Greene took B.L. to the office but instructed Ms. Tucker to retrieve his backpack from Ms. Newton’s classroom. Ms. Tucker returned to Ms. Newton’s classroom to retrieve the backpack. Ms. Newton expressed frustration at the decision to return the backpack to B.L., saying that meant “he won.” From Ms. Tucker’s and Mr. Greene’s perspectives, returning the backpack to him made sense, in part because they were not aware of the exchange related to the backpack earlier, and in part because it was close to the end of the day and B.L. would not be returning to the classroom that day. From Ms. Newton’s perspective, the backpack had been taken from B.L. because she had told him she would take it if he did not comply with her directives, and he did not do so. She felt that returning the backpack to him at that point was ensuring that B.L. had no consequences for his bad behavior. After completing their end-of-day responsibilities, Mr. Greene and Ms. Tucker returned to the classroom to speak to Ms. Newton about B.L. Ms. Newton told them that he had been out of control all day, kicking boxes, pushing chairs, and a danger to himself and others. She stated that it was only B.L.’s third day in the classroom and it would take some time to live up to expectations, but that he knew the rules and knew how to follow them. Mr. Greene felt that Ms. Newton was clearly upset with both him and Ms. Tucker with respect to how B.L. was handled. Ms. Newton asked whether B.L.’s parent had been called, and felt that his parent should have been contacted as part of addressing B.L.’s behavior. After speaking to Ms. Newton, Mr. Greene and Ms. Tucker pulled the videotape for the afternoon in Ms. Newton’s classroom. After scanning through the tape, Mr. Greene went to Ms. Burgess and asked her to view it because the tape’s contents concerned him. Once she did so, Ms. Burgess called Lisa Krysalka, the head of human resources for the District, and after discussion with her, called both the Department of Children and Families and the local sheriff’s office. She also spoke to Ms. Newton and told her she was to report to the District office the following day, and called B.L.’s parent. Rose Cohen investigated the matter for the District, which included speaking to Ms. Burgess, Mr. Greene, Ms. Newton, Suzanne Quigley, and a Ms. Ballencourt, and watching the video. Adrienne Ellers, the lead behavior analyst for the District, was asked to watch the video and to identify any deviations from the TEACH program for student management accepted by the District. Ms. Cohen recommended to the superintendent that Ms. Newton’s employment be terminated, and the superintendent presented that recommendation to the School Board. Ms. Newton appealed the recommendation and a hearing was held before the School Board, which included a viewing of the video of her classroom. The School Board rejected the superintendent’s recommendation for termination by a 3-2 vote. However, Ms. Newton did not return to Maplewood. No evidence was presented to indicate that the Department of Children and Families determined that there was any basis for a finding of child abuse or neglect. Likewise, no evidence was presented indicating that law enforcement took any action against Ms. Newton. There was also no evidence to indicate that B.L. was harmed. The focus of much of the evidence in this case dealt with the video from Ms. Newton’s classroom. The video, Petitioner’s Exhibit 1, is approximately two hours long. It is from a fixed position in the classroom and it shows some, but not all, of Ms. Newton’s classroom. It has no sound. There are parts of the video where, due to lighting deficiencies and similar skin color tones, it is difficult to tell exactly what is transpiring. There are also times when either Ms. Newton or B.L., or both, are not fully within the view of the camera, and sometimes they are not visible at all. With those parameters in mind, the video does show some of the interaction between Ms. Newton and B.L. What is clear from the video is that Ms. Newton spends a great deal of time talking to B.L., and that she remains calm throughout the day. B.L. does appear to comply with direction for short periods in the video, but never for very long. The video shows Ms. Newton holding B.L. by the arms; pulling him up both by the torso and by his arms; removing (but not “snatching”) his eyeglasses; removing his jacket with some resistance from him; blocking his access to his jacket; and kicking his backpack away from his reach. It also shows B.L. kicking items in the room, including a large box near where he is standing; rolling around on the floor; flailing his arms and legs around when he is clearly being directed to be still; and generally resisting any attempt at correction. The video also shows that during the time Ms. Newton is focused on B.L., the other students are engaged in learning, and Ms. Quigley is able to work with them without assistance. The Administrative Complaint alleges that “Respondent and B.L. engaged in a tussle which resulted in B.L. falling to the ground.” A more accurate description would be that B.L. resisted Ms. Newton’s attempts to show him how she wanted him to stand, and in his struggling, he went to the ground. It appeared to the undersigned that Ms. Newton was attempting to prevent his going down, but was unable to do so safely. The Administrative Complaint also alleges that Respondent “grabbed B.L. by the back of the neck and gripped B.L.’s neck for approximately 10 seconds.” A more accurate description would be that Respondent placed her hand at the back of B.L.’s neck and guided him with her hand at the base of his neck for approximately 10 seconds. She did not grab him by the neck or hold him that way; it appeared that she was protecting him from falling backwards, as he pulled away from her. Respondent did not, as alleged in the Administrative Complaint, drag B.L. across the floor. She did attempt to get B.L. to stand one of the many times that he flopped on the floor, and he resisted her attempt. In that process, the two of them did move across the floor a short distance, which appeared to be due to B.L.’s pulling away from her, but she was not dragging him across the floor. All of Ms. Newton’s actions were taken in an effort to either instill the rules of the classroom in order to create for B.L. an atmosphere for learning, or to prevent harm to either herself, B.L., or property in the classroom. Ms. Quigley, who was present in the classroom during most of the interchange depicted on the video, was more focused on the other students in the class than she was on B.L. She has seen a portion of the video since the incident. Ms. Quigley recalls hearing parts of the conversation between B.L. and Ms. Newton, and testified that Ms. Newton never lost control with B.L., and understood from what she heard that Ms. Newton was trying to get B.L. to follow the rules. Nothing Ms. Quigley saw or heard caused her any concern. Barbara O’Brien and Christine Spicoche are both parents of former students who testified on Ms. Newton’s behalf. Both acknowledged that they had not seen the interaction between Ms. Newton and B.L.,2/ but both have been in her classroom on numerous occasions during the years that their children spent with Ms. Newton: Ms. O’Brien’s son was in Ms. Newton’s class for six years, while Ms. Spicoche’s son was there for three years. Both expressed a great deal of gratitude for the positive effect Ms. Newton and her teaching methods have had on their sons’ lives. With respect to both children, the mothers testified that their sons went from children who were out-of-control to children who were able to function appropriately both in the classroom and in other places. As stated by Ms. Spicoche, “It would be best for him to be at a strong hand of a loving teacher who cares, who wants the best for him than being at the fist of the legal system later.” At all times, Ms. Newton’s focus was to establish the rules of the classroom so that B.L., like the other students in her classroom, would be able to learn. B.L. was different from the other students in her classroom, and she admitted he was a challenge. However, Ms. Newton’s actions in this case are consistent with her general philosophy for teaching: to be firm, fair, and consistent at all times. Ms. Newton believes that if you do not follow these principles, you have chaos in the classroom, and where there is chaos, no one is learning. With a disciplined, structured environment, Ms. Newton believes every child can learn, and the atmosphere observed in her classroom is consistent with her philosophy. Ms. Burgess chose Ms. Newton’s classroom for B.L. precisely because of her reputation as having a disciplined structured classroom. However, in her view, Ms. Newton should have just given B.L. his backpack when he wanted it; should have given him his glasses; should have let him just walk around the room when he wanted to; and should have just let him kick the door, rather than ever putting a hand on him. Ms. Burgess did not explain (nor was she asked) how many children in the classroom should be allowed to do what B.L. was doing, and whether learning could still take place should each of the children be allowed to wander, kick, and be disruptive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Education Practices Commission enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 25th day of November, 2015.
The Issue The central issue in this case is whether the Respondent should be suspended or dismissed from her employment with the School Board of Dade County, Florida (Board).
Findings Of Fact Based upon the testimony of the witnesses the following findings of fact are made: Respondent was employed as a first grade elementary school teacher at Fulford Elementary School during the 1988-89 school year. In September, 1988, the principal at Fulford Elementary, Mrs. Pope, asked the primary education coordinator for region 2, Mrs. Neely, to perform an observation and assessment of all primary teachers at Fulford. Accordingly, Mrs. Neely observed all classrooms for grades kindergarten through three and made recommendations to the teachers and Mrs. Pope. Mrs. Neely visited respondent's classroom on several occasions and observed the Respondent's treatment of students and her teaching methods. Respondent did not follow the lesson plan for the daily lesson, did not have a schedule to specify times for subjects to be taught, and did not have a based reading program as required by the board. When Mrs Neely attempted to counsel Respondent in order to assist her to correct these deficiencies, Respondent became hostile and argumentative. During one visit Mrs. Neely observed the Respondent chasing students around the classroom. At first Mrs. Neely assumed the conduct to be a game of some type. When the conduct continued for several minutes without interruption or comment from Respondent, Mrs. Neely realized that the class was out of control and that the Respondent was unable to restore order. Consequently, Mrs. Neely took charge and got the children into their seats. When she instructed the class to get quiet, Respondent also took her chair and refused to speak. Ultimately, Mrs. Neely taught the class for the remainder of the lesson. Respondent refused to cooperate with Mrs. Neely and did not correct the deficiencies in teaching and class management which Mrs. Neely observed. During a portion of October and November, 1988, Vincent Golden was assigned to Respondent's classroom to work as a teacher's aide. During the three weeks he was with Respondent's class, Mr. Golden observed Respondent on a daily basis. Twice during this period Respondent grabbed a student named Devon by the throat to reprimand inappropriate conduct. On another occasion Respondent grabbed a female student by the hair in order to chastise the student. In a fourth incident, Mr. Golden heard the Respondent instruct students in the class to chase down another student. This chase resulted after Respondent had thrown off her own shoes, failed at catching the student within the room, and had become frustrated the student bolted from the classroom. Mrs. Pope apprehended the errant student and Respondent's posse in the halls. During the fall of 1988, Mary Williams was employed as a systems aide at Fulford Elementary. On one occasion she observed two students outside of Respondent's classroom who were unable to open the door because Respondent and a student were holding it closed from the inside. One of the students was crying hysterically and was taken to the library to calm down. On a second occasion Respondent refused to allow a new student who was handicapped into her room. Mrs. Williams went to Respondent's classroom almost everyday to ask Respondent for her reading groups. It was Ms. Williams' responsibility to enter the reading group information into the school computer. Respondent refused to provide the reading group rosters. During the fall of 1988, Charles Mixon supervised a maintenance crew at Fulford Elementary. One day while Mr. Mixon was observing a crew mowing the lawn adjacent to Respondent's room, he saw Respondent shove two students out of the classroom. Mixon then overheard Respondent tell the students to fight outside if they wished to continue. The students were then left in the hall unsupervised. On another occasion Mr. Mixon overheard the Respondent tell a teacher to kiss her backside. Mr. Mixon watched Respondent make the comment as she pulled her dress halfway up. Lossie Jordan was an exceptional education teacher at Fulford Elementary during the 1988-89 school year. On one morning Ms. Jordan was in the office copying some materials when Respondent approached her and asked her if she had a squirrel for her. When Mrs. Jordan replied in the negative and asked Respondent why she would ask that, Respondent told her that a woman had come to her house the day before to tell her to ask Mrs. Jordan that question. No further explanation was offered by Respondent. A second incident occurred when Respondent entered Mrs. Jordan's classroom to drop students of for instruction. Mrs. Jordan was in the process of showing another teacher a new blouse she had bought. Upon entering, Respondent told the students that Mrs. Jordan was a thief and that she had stolen the new blouse. A third incident arose when Respondent, Mrs. Jordan and Mrs. Forbes, another teacher, were in the workroom waiting for the copy machine. Respondent was the third to center the room and when Mrs. Forbes told her that they were ahead of her to use the machine, Respondent shoved Mrs. Forbes against Mrs. Jordan who fell against the cabinets. Respondent then left the workroom. On still another occasion, Respondent told Mrs. Jordan to kiss her backside. On October 27, 1988, Mrs. Pope called Respondent into her office for a conference for the record. Mrs. Pope was concerned about the number of incidents which had been reported regarding Respondent's conduct. Mrs. Pope had also observed Respondent's class. During one observation Mrs. Pope watched a group of students who were sitting at a back table in Respondent's class. One student pulled another student's sweater and tied it behind his back so that the student could not use his hands. Mrs. Pope mentioned the problem to Respondent who advised her that since the student had gotten himself into the situation he would have to get himself out of it. On other occasions Mrs. Pope observed Respondent chasing students around the classroom. Respondent failed to properly supervise students in her classroom. As a result, Mrs. Pope was required to return students to Respondent's room after they wandered out into the school halls. Another unsupervised student got her arm caught in a chair and was brought to Mrs. Pope who had to contact Fire Rescue to release the child's arm. On November 2, 1988, Mrs. Pope directed Respondent to come to the office for a conference with a parent regarding allegations the parent's child had made. Respondent refused to meet with the parent. After directives from Mrs. Pope not to lock her classroom door, Respondent locked her door. After directing Respondent not to leave her class unsupervised, Mrs. Pope found Respondent's class unsupervised at least four times. Respondent had physical contact with students to administer discipline after Mrs. Pope directed her to refrain from such conduct. Respondent refused to accept a handicapped student after Mrs. Pope directed her to admit the child into her class. Following a number of the incidents described above, parents asked Mrs. Pope to remove their children from Respondent's class. Respondent's effectiveness was impaired by her behavior and her failure to properly supervise and instruct her class. Mrs. Pope directed Respondent to an employee assistance program. Ultimately, following a conference with Dr. Monroe, Dr. Poiret, a psychiatrist, performed a psychological assessment of Respondent. Following interviews with Respondent on November 22, 1988 and December 1, 1988, Dr. Poiret determined Respondent was not medically fit to carry out her assigned responsibilities. Consequently, Respondent was relieved of her teaching duties and spent the remainder of the school year on leave. During the leave Respondent was to undergo individual psychotherapy on at least a weekly basis and to have a complete physical examination. Later, Dr. Monroe requested that Respondent submit documentation regarding her psychotherapy Respondent did not do so. In August, 1989, Dr. Poiret met with Respondent again to evaluate her ability to return to the classroom. As in the prior instances, Respondent continued to be hostile, noticeably irritable and angry. Since she had made no significant improvement, Dr. Poiret determined Respondent was not medically fit to discharge her teaching duties due to a lack of emotional stability. Respondent repeatedly demonstrated a failure to effectively and efficiently manage the behavior of students assigned to her classroom. She failed to provide a curriculum of education to the students in her class, failed to communicate appropriately with her peer teachers and administrators who attempted to assist her, and failed to carry out her professional1 duties. As a result, Respondent's effectiveness in the school system has been seriously impaired. Respondent failed to take corrective measures to amend her deficiencies, failed to obey reasonable instructions given to her by the principal, and failed to present documentary evidence of her successful completion of therapy required to rehabilitate her for classroom duties.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County, Florida enter a final order dismissing the Respondent from her employment with the public school district. DONE and ENTERED this 21st day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 21st day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-7035 PETITIONER: Paragraph 1 is accepted. Paragraphs 2 and 3 rejected as irrelevant. Paragraphs 4 and 6 accepted as addressed in paragraph 8, otherwise rejected as irrelevant or recitation of testimony. Paragraph 5 is rejected as irrelevant. Paragraphs 7 and 8 are rejected as irrelevant. Paragraph 9 is accepted. Paragraph 10 is accepted. Paragraph 11 is rejected as hearsay. Paragraph 12 is accepted. As addressed in paragraph 5, paragraphs 13 through 15 are accepted; otherwise rejected as irrelevant or contrary to the weight of the evidence. Except as addressed in paragraph 9, paragraph 16 is rejected as hearsay. Except as addressed in paragraphs 2 through 4, paragraphs 17,18, and 19 are rejected as irrelevant. Paragraph 20 is accepted. The first sentence of paragraph 21 is accepted. The balance of the paragraph is rejected as irrelevant or hearsay. The first six sentences of Paragraph 23 are accepted. The balance is rejected as repetitive, irrelevant or argumentative. Paragraph 24 is rejected as repetitive or irrelevant. Paragraph 25 is rejected as recitation of testimony. Paragraph 26 is accepted to the extent addressed in paragraph 6; otherwise rejected as irrelevant, recitation of testimony or argumentative. Paragraph 27 is accepted. Paragraph 28 is rejected as irrelevant. Paragraphs 29 through 31 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is rejected as contrary to the weight of credible evidence. Todate, Respondent has not submitted written or other evidences from a treating physician which would establish she is medically able to return to the classroom. Paragraph 2 is rejected as contrary to the weight of the credible evidence. COPIES FURNISHED: Irma Annette Butler Lowe 17350 N.W. 17th Avenue Miami, Florida 33056 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue Did Respondent, Cynthia Bradford, commit the violations as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner, Orange County School Board, is the governmental entity responsible for the operation, supervision, and control of public schools in Orange County, Florida, including the employment of personnel associated with the educational process. Respondent is a white, female employed by Petitioner as an exceptional student education (ESE) annual contract teacher. She taught students with learning and/or emotional disabilities at Meadowbrook Middle School. The students that testified, D.C., N.B., and P.S., are all exceptional education students with mental handicaps, learning disabilities, and/or emotional disabilities. These students are African-American, which is the predominate race of the Meadowbrook Middle School population. ESE students with mental handicaps, learning disabilities, and/or emotional disabilities require a greater period of time and more intensive instruction to acquire knowledge and skills taught in the school curriculum. Students with these problems have difficulty processing emotion, which impacts on their ability to function socially and academically in an educational setting. These students are taught in a “self-contained” classroom environment with a lower teacher-to-student ratio and more individualized instruction time each school day. They remain within Respondent’s classroom the greater part of each school day, leaving only for special classes. These students have a diminished cognitive capacity for abstract thought processing and have difficulty grasping, intellectually and comfortably, the concepts described in the book noted hereinbelow. Some of these students would be at high risk for working with concepts articulated in the book. Meadowbrook Middle School has a Reading Achievement and Progress course, referred to as the “RAP” program. RAP instruction is provided school-wide in every class each day during the sixth period. While the primary focus of RAP is to promote reading proficiency, it is also used to instruct students on character development. This is done with the teacher reading aloud to the class and engaging the student in pertinent discussion about character with reference to the topics discussed in the particular book. All teachers at Meadowbrook Middle School, including Respondent, received training on the implementation of the RAP program before the start of the school year and throughout the school year. Respondent participated in the RAP pre-planning and staff development meetings each of the three years that she taught at Meadowbrook Middle School. In connection with RAP training, Respondent received a “R.A.P. Curriculum and Instruction Guide” to provide classroom assistance and resource information for teachers implementing the RAP program. In addition to containing a list of 140 recommended books, the curriculum guide provided teachers with the following guidance on the selection of reading materials: Choose a quality book – this may seem like an obvious thing to do but it is one that many teachers failed to do. A poor book cannot be made better, no matter how well the reader reads it, so choose a book that: Has significant literary value; Is developmentally appropriate for the target age level students; and/or Affords instructional opportunities (e.g., you can use it to teach a specific concept or skill) . . . While there is a list of recommended books, there is no "approved" reading list. A teacher has the latitude to select any book he or she deems appropriate. The Meadowbrook Middle School library has class sets of books for teachers to check out for RAP. Class sets are just that: forty novels--one for each student--so that each student can read his or her own copy of the book along with the teacher and the rest of the class. Meadowbrook Middle School has a literary coach who is available to assist teachers in the selection of books or other aspects of implementation of the RAP program. Respondent selected a book titled Dumb As Me to read to her ESE students during RAP. This book was not on the recommended book list or available in the school library. She believed the book would capture the interest of her students and present a negative example to stimulate character development discussions. She chose the book because it reflects African- American inter-city culture, similar to the Bluford series which is available in the school library. She did not consult with the literary coach or any other Meadowbrook Middle School educational professional in the selection of the book. Dumb As Me, is fiction about a married, African- American male who lives a self-described “pimp” and “player” lifestyle. The book describes in graphic detail sexual behavior including cunnilingus, masturbation, fellatio, sadism, and sexual intercourse. The book is filled with profanity, including "shit," "fuck," "motherfucker," and such words as "ass," "pussy," "cock," and "dick" as descriptions of the human sexual organs. If Respondent's students had uncensored access to the book, it would be harmful to them. Most of the time the book was locked in a cabinet in the classroom. Through unfortunate circumstance, Respondent's students, or some of them, gained access to the book and read it. When Respondent read the book in class, she sometimes edited the book substituting "F-word" for "fuck," for example. On other occasions, she read the plain text of the novel, including depictions of graphic sexual activity and profanity. As a practical matter, the students are aware of most of the profanity contained in the book. When the same profanity is used by students in class, Respondent attempts to discuss the particular word, "bitch" for example, and explain why it is an inappropriate term. An adult teacher's aid assigned to Respondent's classroom was present when Respondent read part of the novel to her students. She left the classroom after Respondent read a sexually explicit portion of the book about the protagonist engaging in cunnilingus with his mistress. This adult teacher's aid reported Respondent's having read the particular book to the school principal. As a result of this report, the principal obtained and read portions of the book. Another administrative employee undertook an investigation that involved interviewing several of Respondent's students. The investigation confirmed that Respondent had read sexually explicit and profanity-laced portions of the novel to her students. Respondent appears to be a sensitive and concerned teacher; however, the error in judgment demonstrated by her selection of Dumb As Me to be read to learning disabled, emotionally and mentally handicapped children raises question of her competence to teach children. Reading the book, as she did, with its graphic depiction of sexual activity and profanity, exposed Respondent's students to conditions harmful to their social, emotional, and academic development. During the investigation and subsequent activities, Respondent misstated the extent that she had read sexually explicit and profanity-laced portions of the book to her students. Respondent's effectiveness as a teacher was diminished by her selection of the particular book and reading sexually explicit and profanity-laced sections of the book to her students.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Respondent's "misconduct in office" constitutes “just cause” under Section 1012.33, Florida Statutes (2005), to dismiss her from her employment as a teacher with Petitioner, Orange County School Board. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006. COPIES FURNISHED: Brian F. Moes, Esquire Orange County School Board 445 West Amelia Street Post Office Box 271 Orlando, Florida 32802-0271 Carol R. Buxton, Esquire Florida Education Association 140 South University Drive, Suite A Plantation, Florida 33324 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ronald Blocker, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32802-0271
Findings Of Fact Richard L. Gryte holds Florida Teacher's Certificate Number 323641, issued on January 4, 1983, covering the areas of elementary education, early childhood education, emotionally disturbed education and Junior College. Until his resignation on March 13, 1984, Gryte was employed by the Seminole County School Board as a teacher of emotionally handicapped students at the Milwee Middle School located in Longwood, Seminole County, Florida. Gryte was initially hired by Douglas Smith, assistant principal at Milwee, in the summer of 1981, to serve as an emotionally handicapped (herein referred to as EH) resource teacher. This was based on Gryte's prior work history, as well as his educational background; including a master's degree in exceptional education. As a resource teacher, Gryte did not have academic responsibilities, but was used as a counselor who would work with students for a period during the day. These students would be assigned to the resource room by their regular classroom teachers, primarily if they had problems regarding behavior. As a teacher involved with emotionally handicapped students, it was necessary for Gryte to prepare forms known as Individual Educational Plans (hereinafter referred to as IEP's). The IEP's were required by Federal and State law and were necessary in order for the school district to obtain funding. From the beginning of his employment and assignment at Milwee Middle School, Gryte had difficulty performing administrative duties regarding documentation and other paperwork. Gryte recognizes that correct documentation is the responsibility of a good teacher, but also acknowledges his weakness in that area. When this problem was brought to the attention of Douglas Smith, assistant principal, he immediately sent memos and spoke with Gryte regarding the problem. During the 1981-82 year, out of the 22 IEP's necessary for Gryte to complete, at least 12 were incomplete or not done. The IEP's that were done were incomplete in that they lacked objectives, goals and other qualitative methods by which to determine the progress of the child. Even as a resource teacher, Gryte failed to prepare lesson plans which were required of all teachers. In fact, Respondent failed to prepare lesson plans for the entire 1981-82 school term, despite being counseled and informed about the necessity of preparing and submitting lesson plans. Overall, Gryte's teaching performance for the 1981-82 school term was not in keeping with minimum standards required of his profession. In addition to the paperwork and other administrative tasks, Gryte had a problem maintaining classroom discipline and control and would violate school rules by leaving the class unattended. During the 1982-83 school term, Mr. Willie G. Holt became the principal at the school. He first became concerned regarding Gryte's performance because of safety concerns he had for student's in Gryte's resource class. Due to the nature of these children and their behavioral problems, it was a policy of the school that children would not be left alone and unattended. Gryte knew of this policy. During the 1982-83 school year, Gryte would periodically leave his class unattended. On two occasions in the spring of 1983, a female student was involved with and performed sexual acts including masturbation and oral sex in the presence of two male students. These acts occurred when Gryte left his class unattended. Gryte recognized that it was wrong to leave the class unattended, but felt he could trust the boys involved and was only gone for a brief period of time. Due to concern for the safety and welfare of the students entrusted to Gryte and because of a need to relieve the previous self-contained teacher, Mr. Holt, school principal, and Mr. Smith, assistant principal in charge of the exceptional education program, decided to place Gryte in the self-contained EH class for the 1983-84 school year. This was thought to be appropriate since the self-contained class had a full-time aide, Betty Manly, who would always be present in the event Gryte would leave the class unattended. Gryte objected to this assignment, but based on his certification and education, he was qualified to be in the self- contained classroom and he was so assigned. Gryte's teaching performance in the self-contained classroom during the 1983-1984 school term was extremely unsatisfactory in all aspects. As in previous years, Gryte was required to submit weekly lesson plans. This was a requirement of all teachers. As in prior years, Gryte was derelict in preparing his lesson plans. From the beginning of the school term until January, 1984, he submitted lesson plans for the first five weeks, but failed to submit any lesson plans thereafter. He next submitted lesson plans for two weeks during the weeks of January 20 and 27, 1984. Thereafter, he did not submit any additional lesson plans until the date of his resignation in March, 1984. The assistant principals, Gordon Hathaway and Douglas Smith, repeatedly instructed Gryte to submit lesson plans timely, but he failed to do so. Even the lesson plans which were submitted were not proper in that they were too generalized and did not serve the proper function. In addition, for the 1983-84 school term, Gryte still had problems completing his IEP's timely and in a proper manner. It was a concern of the school officials that if they were ever audited, they would lose funding. Gryte was counseled by Dr. Daniel Scinto and Dr. Robert Carlton regarding the preparation of IEP's, as well as class management, but little improvement occurred. Gryte's classroom was extremely noisy, unruly and out of control. Dr. Carlton worked with Gryte on several occasions regarding implementation of behavioral management techniques. However, no improvement was noted. The excessive noise from Gryte's classroom was disturbing to the adjoining classes. Mr. Holt started receiving complaints from other teachers. Mrs. Poole indicated that students in her classroom actually complained about the noise from Respondent's class, as did she. The teacher's aide, Betty Manly, observed that Gryte did not assert control. He allowed the students to do as they pleased and demonstrated an apparent lack of classroom control. Gryte himself recognized that there was an excessive amount of noise in his class which was disturbing to other teachers. Some of the noise was due to Gryte's policy of allowing students to use curse words and engage in verbal altercations, which at times led to physical violence. He would permit the students to use "damn", "hell", and other similar curse words. On occasion, fights would break out among the students because Gryte would allow an argument to become too heated and would not assert control. He thought it was necessary for the children to have the freedom to release their anger in this manner. He ultimately hoped to be able to work with the students and this was part of his counseling therapy. Gryte often imposed corporal punishment as a means of discipline with the students. However, he frequently imposed the punishment in violation of State law and School Board policy. The School Board policy, as set forth in the student disciplinary code, requires that all corporal punishment be administered in the presence of another adult and not administered in the presence of other students. On numerous occasions, Gryte paddled a student in the classroom without the presence of another teacher or administrator as a witness and also while in the presence of other students. This practice was against direct orders of the principal. In addition, students were embarrassed by punishment being administered in front of other children. Further, the practice is not appropriate when dealing with any student, but even less so when dealing with emotionally handicapped students. On one occasion, Gryte lined the entire class up for "licks." The noise of the paddling and the student's yelling brought an adjoining teacher to see what had occurred. When she arrived, a student was lying on the floor and his leg was shaking and the student was grimacing and in pain. The teacher advised Gryte not to administer any more punishment, because it was in violation of the school policy. During the first nine weeks of the 1983-84 school year, Gryte failed to provide grades for the students in his class. He was unable to give grades because students had not performed a sufficient amount of work in order for Gryte to evaluate their progress and to assign a competent grade. This was in violation of the school policy as well as the State law, and was upsetting to the administration. The school was required to send blank report cards, with the exception of P.E. grades. Gryte was told to produce his grade book and test papers which had been performed by the students. A review of the grade book showed tests and work had not been required or performed or recorded in order to evaluate the students. What papers were produced by Gryte were not of sufficient quality or quantity to effectively grade the students. The policy of the school was to assign enough work each week to allow the students to receive periodic grades. Gryte recognizes his duty to maintain paperwork and other documentation. He understands this is part of being a competent and effective teacher, even though he would place greater emphasis on the students. Jeanette Burgess was a female student in Gryte's self- contained classroom his last year at Milwee. Gryte had a propensity to touch Jeanette in an inappropriate and unprofessional manner. He would periodically touch her on her face, ears and buttocks. This was embarrassing to Jeanette. On one evening, Gryte called Jeanette's home to speak with her. Her mother, Diana Oliver, answered the phone and inquired as to the nature of the call. Gryte indicated it was a private matter and he needed to speak with Jeanette personally. This offended the mother and she refused to allow him to speak with her daughter and advised him that any matters pertaining to Jeanette in school should be discussed with her. In addition, in the mother's opinion, Gryte had been drinking. She formed this opinion based on slurred speech and other mannerisms. On another occasion, Betty Manly entered the classroom and discovered Gryte standing extremely close to Jeanette and, in Ms. Manly's opinion, touching Jeanette inappropriately. Jeanette was forced back against Ms. Manly's desk and was obviously embarrassed by the situation. Gryte had dismissed the other students to attend P.E. class and was left in the room alone with Jeanette. The situation was upsetting to Jeanette, because she dropped her head and started crying when she was questioned about what had occurred between Gryte and her. Following the telephone incident, Gryte, the principal, and Jeanette's mother had a conference and Gryte was directed not to administer corporal punishment or otherwise touch Jeanette for any reason. Gryte violated this direct order in that he did subsequently administer corporal punishment to Jeanette. Another student in Gryte's self-contained class was a child by the name of Kelly Owens who had self-destructive tendencies and frequently would injure herself. On one occasion, Gryte sent her to the office alone and on the way, she took a piece of glass and cut her wrist and neck, not severely enough to cause death, but enough to result in extensive bleeding. Gryte had been specifically advised not to leave this child unattended. On one occasion, he gave her a pass to leave the school and go to an area known as the "swamp". This is an area off campus where students gather to smoke marijuana and allegedly participate in other similar activities. This occurred after a conference with the child's parents which Gryte attended and in which it was emphasized that the child needed close supervision. On another occasion, Gryte actually left the child in the classroom asleep. This was at the end of the school day. Another teacher came by and found the child sleeping in the class by herself. Gryte indicated he was unaware that Kelly was still in the classroom. In addition to the incident involving the telephone conversation with Jeanette Burgess' mother, Gryte appeared at an open house held on the school campus in the beginning of the 1983-84 school term. It was apparent that Gryte had been drinking. Those teachers present were definitely under the·impression that he had been drinking too much due to his slurred speech and demeanor. When confronted by Mr. Holt, Gryte admitted he had been drinking, but stated he only had one drink prior to the meeting. Based on Gryte's conduct and performance at Milwee, the principal and assistant principal felt he was neither effective nor competent and would not employ Respondent in a teaching position. Respondent recognizes he is not qualified and competent to teach certain areas of his certification. He basically desires to be a counselor and not a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order revoking the teaching certificate of Richard L. Gryte for a period of three years, subject to reinstatement thereafter pursuant to Section 231.28(4)(b), Florida Statutes. DONE and ORDERED this 11th day of April, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: L.Haldane Taylor, Esquire 331 East Union Street Jacksonville, Florida 32202 Richard L. Gryte 7703 Meadowglen Drive Orlando, Florida 32810 Karen B. Wilde Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 Ms. Marlene Greenfield, Administrator Professional Practice Service 319 West Madison Street, Room 3 Tallahassee, Florida 32301 APPENDIX The following constitutes any specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Petitioner's Proposed Findings of Fact 1-31 are all adopted in substance. Rulings on Proposed Findings of Fact of Respondent Respondent filed no Proposed Findings of Fact.
The Issue The issue presented is whether Respondent's termination of employment by the School Board of Miami-Dade County, Florida, was proper.
Findings Of Fact Respondent was employed as a teacher at Charles R. Drew Middle School, pursuant to an annual contract and holds Florida Educators Certificate Number 188727. Respondent holds a bachelor of science degree from Florida Atlantic University. She was employed by Petitioner in 1997 and has worked in the teaching profession for approximately 30 years. Prior to 1997, Respondent was a substitute teacher in Broward County, Florida, and in other states. During the 1999- 2000 school year, Respondent taught eighth grade science. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System ("TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and UTD. The identical TADS evaluations are used for all grade levels, subject areas, and teachers, whether new or veterans. TADS objectively measures 68 minimal behaviors necessary for teaching. At all times material hereto, TADS was used to evaluate Respondent's performance. TADS includes the following factors in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. All teachers are contractually required to be informed of the criteria and procedures. At the beginning of each school year, school principals are required to review the assessment criteria with all faculty. TADS observations and ratings are performed by school principals and assistant principals who are trained and certified. The TADS training encompasses four days and includes the following components: strategies for pre-observation, classroom observation, decision-making with the Classroom Assessment Instrument, post-observation interview, prescription/probation of professionals, recommendations for improvement (prescriptive activities), assisting teachers in the design of instruction and improvement activities, practical activities such as video assessment, and actual classroom teacher assessment under the supervision of a trainer. The trained observer is responsible for recording any deficiencies identified during the observation period and providing a prescription plan for performance improvement. Within five work days, a post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response, either in the space provided in column 3 of the "Prescription for Performance Improvement" or by separate document that becomes part of the teacher's file. The teacher is required to comply with the activities provided in the prescription plan, which are usually obtained from the "Prescription Manual," and to meet the deadlines set forth in the column designated "Timeline" in the prescription performance improvement plan. As a result of the statutory amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedures to comply with the new statutory requirements. Under the amended procedures, a "conference for the record" initiates a 90 calendar-day performance probation period. Each observation is independent, and there must be periodic observations during the performance probation period in which the employee is apprised of his or her progress and is provided assistance through prescription plans. After the performance probation period is concluded, a "confirmatory observation" occurs without a prescription plan. On November 8, 1999, Respondent was formally observed by Assistant Principal Paulette Covin during science class. Respondent received an unsatisfactory rating in Category III, Classroom Management; Category IV; Techniques of Instruction; and Category V, Teacher-Student Relationships. Respondent was rated unsatisfactory in classroom management because she did not effectively use verbal or non- verbal techniques to redirect off-task learners. Several students continuously misbehaved and violated classroom rules. Four students were engaged in drawing during the lesson. One student slept throughout the entire observation which lasted over one hour. Six students talked throughout the observation period. Several students left their seats without permission and walked around the classroom during the observation period. Respondent did not use techniques effectively to maintain the attention of off-task learners. Clear expectations of student behavior and a systematic approach to proper classroom discipline were not evident. Respondent blew a whistle in an attempt to redirect off-task behavior, but there was no connection between the whistle-blowing and the expected behavior. The students did not react at the use of the whistle. Classroom rules were referred to; however, disruptive students were not dealt with quickly and appropriately. Respondent was rated unsatisfactory in techniques of instruction because Respondent failed to provide background information explaining why the topic of waves was being discussed. Respondent asked students if they remembered what they had learned about waves and electromagnetic spectrum. A student responded, "You did not teach us that." Moreover, lesson components were not properly sequenced. Without any segue or introduction from one activity to another, Respondent told the students to engage in jump-in reading and later, buddy reading. Respondent did not provide students with examples of demonstrations for the lesson she was teaching. Respondent did not provide students with feedback. Respondent was rated unsatisfactory in teacher-student relationships because Respondent did not promote a positive interpersonal environment in her classroom. She did not encourage her students who had difficulty responding. She demonstrated a lack of empathy and understanding for students who responded poorly during the observation, and did not solicit involvement from students who appeared reluctant to participate. She failed to take corrective action when one student gave a response and another student yelled out, "Dummy that's not right." During the post-observation conference for the record held on November 15, 1999, Respondent was advised that her performance was unacceptable, and effective immediately, was being placed on a 90 calendar-day performance probation period. She was informed that, at the end of her probation period, it was her responsibility to demonstrate that she had corrected the identified deficiencies. On November 17, 1999, Respondent received a prescription for performance improvement. Assistant Principal Covin made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The plan included observing a lesson taught by a fellow teacher and submitting a summary of the verbal and non- verbal discipline techniques used by that teacher to redirect off-task learners. Respondent was directed to create a classroom management plan for implementing techniques to redirect off-task learners, chart implementation for one week, and then discuss the results with Assistant Principal Covin. In addition, Respondent was directed to review reading strategies learned during in-service training sessions and submit a paper describing ways in which Respondent could provide instruction accommodations for more than one learning style. Additional resources, including administrators and fellow teachers, were also made available to Respondent. Respondent submitted her completed prescription activities before the December 3, 1999, deadline. On December 13, 1999, Respondent was formally observed in her science class by Assistant Principal Andy Granados as a subsequent evaluation to apprise Respondent of her progress. Respondent was found unsatisfactory in Category I, Preparation and Planning; Category III; Classroom Management; and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in preparation and planning because she had failed to develop written lesson plans, as required. Instead, Respondent advised Assistant Principal Granados that "the lesson plans were in her head." Respondent was rated unsatisfactory in classroom management because she was unaware that several students were engaged in off-task behavior. Three students left their seats without permission and went to other students' desks to talk casually. One student sat in his chair but did not attempt to complete any work. Seven students held private conversations and Respondent made no attempt to redirect them. Throughout the observation period, students walked aimlessly, sharpened pencils, visited with other students, and disturbed the class. Respondent failed to address their behavior. Although Respondent blew a whistle, there was no connection between the whistle blowing and any expected behavior. Respondent's use of verbal and non-verbal techniques to redirect the off-task behavior was completely ineffective. Respondent was rated unsatisfactory in techniques of instruction because she failed to provide any background for the lesson at hand. The lesson began without introduction and the activities in the class were unrelated. Respondent distributed two worksheets. The first worksheet involved an exercise comparing energy and the second was an isolated word game. She did not provide the students with any explanation about either sheet. Students repeatedly asked, "Why are we doing this?" Assistant Principal Granados held a post-observation conference with Respondent on January 10, 2000, to discuss his findings. Although the observation took place on Monday, December 13, 1999, Respondent, admittedly, was absent on December 14 and 15, 1999, and again on January 3-7, 2000. Furthermore, the holiday break extended from December 18, 1999, to January 2, 2000. Notwithstanding Respondent's testimony that she was present on two workdays, December 16 an 17, between the date of the observation and the post-observation conference held January 10, 2000, Petitioner complied with the five-work day time requirement for the post-observation conference. During their post-observation conference, Assistant Principal Granados made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The directions included writing and submitting daily lesson plans containing objectives, activities, procedures, assessments, and homework. Respondent was directed to observe a fellow teacher and identify instances where non-verbal techniques were used to maintain the attention of the students. She was also directed to prepare a plan for student behavior with rewards and consequences, to read specific pages for the TADS Prescription Manual, and to complete certain activities in that manual. Additionally, Respondent was directed to create a written outline with an introduction to each lesson indicating the relationship between the written instructional objectives, and the planned activities. The written outline was required to be attached to Respondent's lesson plans. Respondent's prescription plan activities were due on January 28, 2000. Respondent requested and received an extension of time to complete the activities until January 31, 2000, and completed the assigned activities on time. On February 8, 2000, Respondent was formally observed again in her science class by Assistant Principal Edward Bethel. Respondent was rated unsatisfactory in Category III, Classroom Management, and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in classroom management because there was no clear expectations for acceptable behavior. Students were engaged in off-task behavior. Four students left their seats without permission, while six students chewed gum and talked throughout the lesson. Respondent blew a whistle but the students continued to talk. Students who interacted inappropriately or interfered with the work of others were not disciplined appropriately. Two students fought over a stool, while a male student tried to remove a book from a female student. Respondent did not intervene. Respondent was rated unsatisfactory in techniques of instruction because there was no background given for the lesson presented and lesson components were not properly sequenced. Respondent listed six unrelated activities on the board. The students were confused about the unrelated assignments and the relationship between the assignments and what they had learned in the previous lesson. In the middle of the lesson, Respondent interrupted the students and read to them about the life of Frederick Douglas. Respondent failed to explain the connection between the life of Frederick Douglas and the lesson objective of the day which involved an animal's environment influencing survival. During the post-observation conference on February 15, 2000, Assistant Principal Bethel made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The assistance included observing a fellow teacher and identifying five verbal and five nonverbal techniques to maintain specific behaviors of learners. Respondent was instructed to submit to Assistant Principal Bethel techniques that could be used to develop clear expectations to deal with students appropriately. Respondent was instructed to list the name of each student who acted inappropriately, and to submit a written plan to Assistant Principal Bethel as to how Respondent would handle negative behavior in the classroom. In addition, Respondent was directed to read specific pages from the TADS Prescription Manual, and to complete certain activities in that manual. Respondent was directed to create a written outline with an introduction to each lesson indicating the instructional objectives, the planned activities, and a description of how those activities will assist the students in reaching the instructional objective. Respondent submitted her completed activities in a timely manner. On March 9, 2000, two days after Respondent's 90-day performance probation period ended, Principal Ronnie Hunter performed a confirmatory observation to determine if Respondent's deficiencies had been corrected. Principal Hunter formally observed the Respondent in her science class and rated her unsatisfactory in Category II, Knowledge of Subject Matter, Category III, Classroom Management; Category IV; Techniques of Instruction; and Category VI, Assessment Techniques. After the confirmatory observation, Respondent was notified that she had failed to correct her performance deficiencies. Thereafter, on March 9, 2000, Principal Hunter forwarded to the Superintendent of Schools his recommendation that Respondent's employment be terminated. By letter dated March 10, 2000, the Superintendent notified Respondent that he was recommending to the School Board that her employment contract be terminated because she failed to correct performance deficiencies during her 90-calendar-day performance probation period. The assistance provided to Respondent through her prescriptions was substantial and appropriate to remedy her cited deficiencies. Although she claims that in-service training opportunities to help correct the noted performance deficiencies were not provided, she was directed to and observed several fellow colleagues engaged in teaching. Dr. O'Donnell, a 31-year veteran with the school system and an expert in TADS and teacher assessment, specifically testified that in-service training is not limited to formal education or workshops, but includes observation of fellow teachers. Although the School Board provided sufficient and meaningful in-service training opportunities to Respondent, she failed to show improvement. Respondent further claims that the School Board failed to meet TADS requirements after she was placed on a 90 calendar- day performance probation in October 1999, following the initial and rescinded observation conducted by Principal Hunter on October 12, 1999. Respondent claims that after she was initially placed on probation in October, Principal Hunter failed to notify her that she was being removed from probationary status due to a procedural error. Principal Hunter testified he rescinded the October 12, observation and verbally told Respondent that he was removing her from the 90-calendar- day performance probation because he did not get a required signature on the post-observation report. Respondent on the other hand, claims she did not receive notification and, as a result, believed the observation conducted by Paulette Covin on November 8, 1999, and the subsequent observations conducted on December 13, 1999, and February 8, 2000, were observations within the 90 calendar-day probation period. Respondent's claim that she never received notice that she was no longer on probation following the October 1999 observation is disingenuous. Notwithstanding Principal Hunter's credible testimony that he verbally informed her that she was no longer on probation, Respondent was clearly placed on notice that she was on probation beginning November 17, 1999. Specifically, on November 15, 1999, a conference-for-the-record was held with Respondent following her unsatisfactory observation held on November 8, 1999, during which Respondent received a written prescription and was informed in writing that, as a result of that unsatisfactory observation, she was being placed on the 90-calendar-day performance probation period. Moreover, on November 17, Respondent signed the summary of the conference-for-the-record which clearly and unambiguously stated, "You were advised of the availability of personnel to assist you during the 90 calendar-day Performance Probation, which commences upon the date that you receive the written prescription." In addition, the School Board committed no statutory violation of any TADS procedures by rescinding the October 12 unacceptable observation. In fact, under TADS the School Board could not rely on the October 12 unacceptable observation to dismiss Respondent because the post-observation report lacked a required signature. The School Board correctly rescinded the October 12 unacceptable observation. The TADS' requirements and procedures were properly executed regarding the formal observations of Respondent and the evaluations of her teaching performance. Petitioner complied with all of the statutory time frames. Respondent also failed to demonstrate that Principal Hunter created a hostile environment toward Caucasian female teachers that resulted in the termination of Respondent's employment. There was no reliable evidence that Principal Hunter discriminated against Respondent at any time including his formal observations of Respondent pursuant to TADS. While Principal Hunter performed two formal observations noting Respondent's deficiencies including the rescinded observation on October 12, 1999, and the confirmatory on March 9, 2000, three different assistant principals also objectively evaluated and rated her unsatisfactory prior to Principal Hunter's confirmatory observation finding Respondent's performance unacceptable. Moreover, Principal Hunter interviewed and hired Respondent as a teacher in 1997. Finally, although the School Board's contract with UTD provides for a joint labor/management committee called the "TADS Monitoring Committee" to resolve evaluation and procedure disputes, Respondent never objected to the criteria, procedures, or assessments of the committee. In sum, Respondent failed to demonstrate that TADS procedures were not followed, or establish that she was harassed or discriminated against by Principal Hunter. On the other hand, Petitioner presented competent substantial evidence that Respondent consistently performed at an unsatisfactory level and failed to correct her deficiencies during the probationary period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order terminating Respondent's employment and denying Respondent's claim for back pay. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 5th day of June, 2001. COPIES FURNISHED: Valerie Kiffin Lewis, Esquire Valerie Kiffin Lewis, P.A. 4801 South University Drive, Suite 102 The Atrium Centre Fort Lauderdale, Florida 33328 Timothy A. Pease, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent failed to correct noted performance deficiencies during his probationary period and therefore should be terminated from his employment with the Miami-Dade County School Board pursuant to Section 1012.34, Florida Statutes.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including M. A. Milam K-8 Center (Milam). For approximately the past 13 years, Dr. Robert Valenzuela has been the principal of Milam. Jeffrey Hernandez was an assistant principal at Milam during the 2001-2002, 2002-2003, and 2003-2004 school years. Michelle Judge is in her second year as an assistant principal at Milam. 5. During the 2001-2002, 2002-2003, and 2003-2004 school years, Respondent was a middle school social studies teacher at Milam. During the 2003-2004 school year, he taught advanced classes comprised of gifted students. Of the four middle school social studies teachers at Milam during the 2003-2004 school year, Respondent was the only one assigned to teach such advanced classes. Teaching gifted students was a coveted assignment. At the beginning of the 2003-2004 school year, when teaching assignments were made at Milam, it appeared, based upon Respondent's teaching record, that Respondent "was competent to teach the courses" he was assigned. Teachers at Milam, like all teachers employed by the School Board, are now, and have been at all times material to the instant case, evaluated in accordance with the School Board's Professional Assessment and Comprehensive Evaluation System (PACES).2 PACES is described in the PACES Teaching and Learning Professional Growth Manual (Manual). The Manual's preface contains, among other things, the following information: . . . . The PACES is a comprehensive, learner-centered, classroom-based assessment system that is designed to provide M-DCPS teachers, administrators, and other educators with information useful for improving teaching and learning in classrooms and schools. . . . The organization of this manual includes seven major Domains, subsumed Teaching and Learning Components, and Teaching and Learning Indicators. In addition, it contains extensive explanations and examples of the indicators to clarify their meanings and can be used by teachers and other instructional personnel as they develop professional growth plans and activities. A sub-set of the required indicators is used to make annual evaluation decisions. The teaching and learning indicators in the PACES are not simple statements of particular teaching behaviors. Rather, they are statements that describe observable elements of quality teaching and learning that are assessed within the unique context of each classroom. The PACES Teaching and Learning Professional Growth Manual does not reflect a single philosophy or model of teaching and learning. It has been designed to accommodate a wide variety of teaching methods and learning tasks. The manual appreciates teachers as professionals. Thus, this manual does not tell teachers how they should teach. * * * Appropriate professional growth activities for teachers may be addressed by using PACES Teaching and Learning Indicators including those that are not required for annual evaluation. All teachers are evaluated with the M-DCPS Teaching and Learning Professional Growth Manual using only the Required Indicators. * * * Throughout this manual, some Teaching and Learning Indicators are in bold print and lined above and below the text. These are required indicators for evaluation by the principal or designated administrator. The decision rule is also in bold type and states that a post-observation meeting must occur between the teacher and the evaluator for the purpose of designating professional growth activities. . . . * * * The "seven major Domains, subsumed Teaching and Learning Components, and Teaching and Learning Indicators" are further explained in the following introductory passage in the Manual: This manual is organized by seven Domains as follows: Planning for Teaching and Learning Managing the Learning Environment Teacher/Learner Relationships Enhancing and Enabling Learning Enabling Thinking Classroom-Based Assessments of Learning Professional Responsibilities Domains I-VI are further defined by sets of teaching and learning Components and their Indicators. Indicators are the fundamental units of observation that are used to make professional judgments about the quality of teaching and learning. Domain VII includes indicators of ongoing compliance with rules, policies, and procedures that are used as part of the annual evaluation of M-DCPS teachers. Required Indicators for evaluation are designated throughout the manual in bold print. These Required Indicators represent the fundamental level of teaching practice to be demonstrated by all instructional personnel, and are aligned with the Florida Department of Education Educator Accomplished and Professional Practices. . . . There are 44 "Required Indicators." A teacher's performance is considered unsatisfactory if it fails to meet one or more of these "Required Indicators." At the beginning of each school year, Milam's administrators review the features of PACES with the teachers at the school. Such a review was conducted at the outset of the 2003- 2004 school year. At all times material to the instant case, Principal Valenzuela and Assistant Principals Hernandez and Judge were trained in PACES and authorized to observe and evaluate teachers at Milam. They each conducted at least one observation/evaluation of Respondent during the 2003-2004 school year. Assistant Principal Hernandez was the first of the three to observe and evaluate Respondent during the 2003-2004 school year. Assistant Principal Hernandez's initial observation of Respondent was conducted on November 5, 2003. As required by PACES, prior to this November 5, 2003, observation, Respondent met with Assistant Principal Hernandez to discuss the lesson plan Respondent had prepared for the class that Assistant Principal Hernandez was going to observe. Assistant Principal Hernandez "rejected" the lesson plan. Erroneously believing that Assistant Principal Hernandez had "rejected" the lesson plan because of its format, Respondent went to Principal Valenzuela and complained that, under the collective bargaining agreement, Assistant Principal Hernandez had the authority merely to suggest, but not to require, that Respondent's lesson plans follow a particular format. Principal Valenzuela acknowledged that Respondent was correct and recommended that Respondent go back to Assistant Principal Hernandez and revisit the matter with him. When Respondent did so, Assistant Principal Hernandez attempted to make clear to Respondent that his concern was with the content, not the format, of the lesson plan. Respondent's performance during the observation on November 5, 2003, was unsatisfactory. Respondent had a post-observation meeting with Assistant Principal Hernandez on November 6, 2003. That same day, Assistant Principal Hernandez prepared the following memorandum, which accurately summarized what had occurred at the meeting: On Thursday, November 6, 2003, at 2:30 p.m., a PACES Post-Observation Meeting was held with you in my office. During our meeting, I informed you that you had not met standards for II.D, II.E, IV.D, V.A, V.B., V.C, VI.B, and VI.C. Therefore, I will be conducting a follow-up observation within the next three weeks. Furthermore, I informed you that you had the opportunity to work with a Professional Growth Team to assist you with the indicators identified as not meeting standards. You declined having a Professional Growth Team assigned to you at this time. If you have any question or need further information, please do not hesitate to see me. Respondent was given the memorandum on November 10, 2003, at which time he signed it, thereby acknowledging that he received it and that he "continu[ed] to decline having a Professional Growth Team assigned to [him]." Inasmuch as this was Respondent's initial evaluation of the school year, pursuant to PACES, it was "not of record" and he was free to "to decline having a Professional Growth Team assigned to [him]." In addition to being given the "opportunity to work with a Professional Growth Team," Respondent was also advised to review the Manual, observe other teachers in the classroom,3 and go to the School Board website and view PACES video "vignettes" showing teachers modeling classroom performance meeting each of the "Required Indicators." Assistant Principal Hernandez conducted a follow-up observation of Respondent on January 30, 2004, while Respondent was teaching a social studies lesson "ha[ving] to do with discrimination" to a class of gifted sixth graders. Respondent's performance during this observation on January 30, 2004, was unsatisfactory. On February 5, 2004, Principal Valenzuela and Assistant Principal Hernandez held a conference-for-the-record with Respondent to discuss Respondent's unsatisfactory performance during the January 30, 2004, observation. Following this conference-for-the record, Principal Valenzuela sent Respondent the following memorandum,4 dated February 5, 2004, which accurately summarized what had occurred at the conference-for-the record: A conference-for-the-record was held with you in my office on Thursday, February 5, 2004, at 9:35 a.m. Present at the conference were Jeffrey J. Hernandez, Assistant Principal and this administrator. You were provided the option for union representation, but you declined. The purpose of this conference is to recount the procedures relating to the 90-Day [C]alendar Day Performance Probation. An initial observation, (not of record) was conducted on November 5, 2003, and revealed below standard indicators. These indicators were reviewed with you on November 6, 2003, in a post observation meeting. At that meeting, you were offered the assistance of a Professional Growth Team (PGT) and you declined (see attached memorandum). Further, you were advised that you would be formally observed at a later date. Subsequent to the observation which was not of record, a formal observation was conducted on January 30, 2004, which identified below standard indicators in teaching and learning in Domain(s)/Component(s) II.D.1, IV.A.3, IV.A.5, IV.B.3, IV.C.2, IV.D.1, V.A.1, V.A.4, V.B.1, V.B.2, V.C.1, VI.B.1, VI.B.3, VI.C.4. At this scheduled conference-for- the-record, your input was solicited, resulting in the attached Professional Improvement Plan (PIP). It is your professional responsibility to complete the requirements of the PIP within the note[d] timelines. You were reminded that the PGT is herein formally assigned to assist you during the 90-Calendar Day Performance Probation. The probation period commences the day after receipt of the written PIP as evidenced by your signature and the date. Subsequent to the conclusion of the 90- Calendar Day Performance Probation, a determination will be made as to whether performance deficiencies have been satisfactorily corrected within the probation period. A recommendation by the principal will be made to the Superintendent that may lead to termination of your employment contract as stipulated in FS 231.29.[5] You were apprised of your right to clarify or explain any information recorded in this conference by this summary. Respondent signed the memorandum, acknowledging that he received it, on February 9, 2004. Respondent also signed the Professional Improvement Plan attached to the memorandum (First PIP) on February 9, 2004, indicating that he had "seen and received the document" on that date. Therefore, his 90-calendar day probationary period began on February 10, 2004. Prepared by Assistant Principal Hernandez, the First PIP was accurately noted the deficiencies he had found during his January 30, 2004, observation of Respondent,6 and prescribed activities designed to help Respondent correct these deficiencies. It read as follows: Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.D.1 Changes in teaching and learning activities are sufficient to engage learners. Deficiency: Changes in teaching and learning activities are insufficient to engage learners. This deficiency is evidenced by: Learner engagement was not promoted through a variety of means initiated by the teacher. The learners were sitting one per table. The learners were reading a worksheet and answering low recall questions throughout the lesson. As a result, the learners became disinterested and bored. This was evidenced by the girl sitting on the second table on the left playing with her nails, the boy sitting on the first table next to the teacher's desk hitting the table with [a] pencil and two boy[s] sitting on the right of the teacher's desk staring at the teacher with the[ir] arm[s] holding their head[s] on the desk. Improvement Plan: Read for understanding the explanations and examples for indicator II.D.1; Resource: The PACES Teaching and Learning Professional Growth Manual and The Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 12, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.A.3 Specific learning outcomes are clearly understood by learners. Deficiency: Specific learning outcomes are not clearly understood by learners. This deficiency is evidenced by: The learners were not provided with the lesson objective verbally nor written. The interactions between the teacher and the learners varied in topic as they arose. The focus of the lesson did not follow the established objective. Since the teacher did not specify what the learning outcomes were, students did not know what was expected of them. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.A.3; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 12, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.A.5 The purpose or importance of learning tasks is clear to learners. Deficiency: The purpose or importance of learning tasks is not clear to learners. This deficiency is evidence by: The learners did not have the opportunity to make any reference to the relevance of the learning activities to real life. At no time were the learners given the purpose or importance of activities the teacher asked them to do. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.A.5; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 19, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context. Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by: The learners were not provided the opportunity to achieve the complexity of learning context relevant to learning outcomes, enhancing learning, and broadening learner understandings. The learners were not involved in activities such as cooperative learning, student interactions, nor other techniques that would avoid the learner to become disinterested. The learners basically read a worksheet silently and then the teacher would ask low level recall questions. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 20, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.3 Teaching methods and learning tasks are implemented at an appropriate pace. Deficiency: Teaching methods and learning tasks are not implemented at an appropriate pace. This deficiency is evidenced by: The learners were involved in learning activities that were passive at all times throughout the lesson. The passive learning resulted in learners becoming bored. The learners were sitting down, listening to the teacher lecture on the worksheet and answering low level questions. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.B.3; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 24, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by: The learners were not effectively provided learning material nor aids that would accommodate their range of learner abilities and needs nor material that contributed to a better understanding of the lesson. The teaching aids only consisted of the worksheet students were reading throughout the lesson. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.C.2; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 24, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.1 Learners have opportunities to learn at more than one cognitive and/or performance level to integrate knowledge and understandings. Deficiency: Learners do not have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. This deficiency is evidenced by: All learners did the same assignment with no variation to accommodate differences in learning styles. The learners were not given the opportunity to extend their activities from simple to complex levels to reflect the range of developmental and ability characteristics of learners. The learners read from a worksheet and answered lower level questions. For example, "What is discrimination?" Improvement Plan: Read for understanding the explanation and examples for Indicator IV.D.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 27, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.A.1 Learners are actively engaged and/or involved in developing associations. Deficiency: Learners are not actively engaged and/or involved in developing associations. This deficiency is evidenced by: The learners did not have the opportunity to link new associations to prior learning experiences so the objectives were meaningful to learners through transferring knowledge. The learners did not have the opportunity to retrieve prior learning knowledge and initiate learning. This was a result of the entire lesson consisting of only reading a worksheet silently and answering low level recall questions. Improvement Plan: Read for understanding the explanation and examples for Indicator V.A.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 2, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.A.4 Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by: The learners did not actively share examples in the large group discussion to sufficiently enable their development of thinking abilities nor were learners asked to generate examples from their experiences in writing. Improvement Plan: Read for understanding the explanation and examples for Indicator V.A.4; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 2, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.B.1 A variety of questions that enable thinking are asked and/or solicited. Deficiency: A variety of questions that enable thinking are not asked and/or solicited. This deficiency is evidenced by: The learners were not asked questions that stimulated higher order thinking abilities nor [was there] variety in questioning [that was] conducted as tasks were performed. The teacher utilized questions in a recall format as the students read worksheets. Improvement Plan: Read for understanding the explanation and examples for Indicator V.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 4, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.B.2 Wait time is used as appropriate to enhance development of thinking skills. Deficiency: Wait time is not used as appropriate to enhance development of thinking skills. This deficiency is evidenced by: The learners were directed questions to answer verbally prior to asking the question. Therefore, learners were not allowed to ponder answers to questions, and to then respond. The teacher directed questions to individual learners from the beginning. Improvement Plan: Read for understanding the explanation and examples for Indicator V.B.2; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 1, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving. Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by: The learners were not involved in problems that needed solutions, enhanced reflective thinking nor linked causes to effects. The entire lesson involved learners reading a worksheet silently and learners responding to recall questions. Improvement Plan: Read for understanding the explanation and examples for Indicator V.C.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004. Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the lesson is an important element of effective teaching and learning. Component/Indicator VI.B.1 A range of learner responses is solicited as appropriate to assess various cognitive and/or performance tasks. Deficiency: A range of learner responses is not solicited as appropriate to assess various cognitive and/or performance tasks. This deficiency is evidenced by: The learners were not assessed informally throughout the lesson for the teacher to acquire information about the learner's progress toward understanding objectives. Improvement Plan: Read for understanding the explanation and examples for Indicator VI.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004. Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the lesson is an important element of effective teaching and learning. Component/Indicator VI.B.3 Adjustments in teaching and learning activities are made as needed **OR** no adjustments are necessary. Deficiency. Adjustments in teaching and learning activities are not made as needed. This deficiency is evidenced by: The learners were not provided a variety of learning tasks to avoid learner disinterest. The teacher did not change the difficulty level of content throughout the lesson. The entire lesson consisted of learners reading a worksheet and answering low level recall questions. Improvement Plan: Read for understanding the explanation and examples for Indicator VI.B.3; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004. Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the lesson is an important element of effective teaching and learning. Component/Indicator VI.C.4 Learners receive specific feedback when learning tasks and/or learning outcomes are completed. Deficiency: Learners do not receive specific feedback when learning tasks and/or learning outcomes are completed. This deficiency is evidenced by: The learners were not provided specific feedback that would allow them to monitor their own completion of tasks and accomplishments of learning outcomes. When the learners would answer questions correctly or incorrectly, the teacher only responded with "OK, no, alright." Improvement Plan: Read for understanding the explanation and examples for Indicator VI.C.4; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 4, 2004. Under PACES, a teacher placed on probation must work with a professional growth team consisting of two members, one chosen by the teacher and the other selected by the principal. Daniel Atlas, the chairman of Milam's social studies department, and Lori Weiss were the two members of Respondent's professional growth team. Principal Valenzuela selected Mr. Atlas. Respondent chose Ms. Weiss. Both Mr. Atlas and Ms. Weiss had been trained in PACES and had been on professional growth teams before. During Respondent's 90-calendar day probationary period, Mr. Atlas and Ms. Weiss attempted to help Respondent correct his performance deficiencies.7 Respondent timely completed all of the activities prescribed in the First PIP. Respondent was next formally observed on March 11, 2004, while he was teaching a civics lesson to a class of gifted seventh graders. Assistant Principal Judge conducted this March 11, 2004, observation. Respondent's performance during the observation was unsatisfactory. Principal Valenzuela and Assistant Principal Judge met with Respondent on March 19, 2004, to discuss Respondent's unsatisfactory performance during the March 11, 2004, observation and to review the Professional Improvement Plan Assistant Principal Judge had prepared for Respondent following the observation (Second PIP). At this March 19, 2004, meeting, Respondent signed the Second PIP, indicating that he had "seen and received the document" on that date. The Second PIP accurately noted the deficiencies Assistant Principal Judge had found during her March 11, 2004, observation of Respondent8 and prescribed activities designed to help Respondent correct these deficiencies. It read as follows: Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.A.3 There are no inefficient delays in organizational or teaching and learning activities. Deficiency: There are inefficient delays in organizational or teaching and learning activities. This deficiency is evidenced by: The objective of the lesson was to discuss nominations, candidates, and campaign tools during an election. Learners were digressed from the objective when the teacher read an article about the war and did not make any connection to the purpose of the election. Upon the teacher finishing the reading, the learners began asking questions since confusion arose. The teacher stated, "Well, let's leave this discussion about the article for now because it is off topic." The learning was also interrupted when a learner arrived late to class and the teacher wasted learning time to publicly reprimand and inquire about the student's whereabouts. This resulted in the other learners becoming off-task by involving themselves in a [] conversation. Improvement Plan: Gain a better understanding through direct classroom observation of beginning learning in a timely manner without inefficient delays in organizational or teaching and learning activities; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator II.A.3; Timeline: Discuss and identify with the administrator techniques and strategies to avoid inefficient delays in organizational or teaching and learning activities. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by March 26, 2004. Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.E.1 Expectations about acceptable behavior are clear to learners and are consistently maintained throughout the lesson. Deficiency: Expectations about acceptable behavior are not clear to learners and are not consistently maintained throughout the lesson. This deficiency is evidenced by: The behavioral expectations of students are not clearly understood by the learners. When the teacher began to publicly inquire about the whereabouts of the tardy learner, the learner began to answer him back in a rude and discourteous fashion. The teacher did not monitor effectively to prevent or diffuse the situation in which the unacceptable behavior occurred. Furthermore, it was evident that a tardy policy is not in place nor clear to the learners.[9] Improvement Plan: Gain a better understanding through direct classroom observation of expectations about acceptable behavior that are clear to learners and are consistently maintained throughout the lesson; Resource: Observation of a colleague and/or the viewing of PACES vignettes for required indicator II.E.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to convey and consistently maintain expectations about acceptable behavior. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 5, 2004. Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.E.5 Unacceptable behavior is managed quickly and in a reasonable manner **OR** there is no unacceptable behavior. Deficiency: Unacceptable behavior is not managed quickly and in a reasonable manner. This deficiency is evidenced by: Managing unacceptable behavior of learners in a reasonable manner was not evident. The learner who was tardy was disrespectful and argumentative with the teacher, and no discipline plan was followed (no consequences from this incident). Improvement Plan: Gain a better understanding through direct observation of managing unacceptable behavior quickly and in a reasonable manner; Resource: Observation of a colleague and/or the viewing of PACES vignettes for required indicator II.E.5; Timeline: Discuss and identify with the administrator techniques and strategies to be used [for the] effective[] [] management of unacceptable behavior. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 9, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.3 Content knowledge is accurate and is clear to learners. Deficiency: Content knowledge is not accurate and is not clear to learners. This deficiency is evidenced by: The learners asked questions related to the objective, and the teacher was not able to provide them with an answer. For example, a student asked, "From where do you get the delegates?" and the teacher made statements, including "I do not know the answer" and "I do not like politics." The teacher made no reference to the fact that research would be done to learn the answers to the learners' questions. Improvement Plan: Gain a better understanding through direct observation of a learning climate where content knowledge is accurate and is clear to learners; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.D.3; Timeline: Discuss and identify with the administrator techniques and strategies to be used to demonstrate content knowledge that is accurate and is clear to learners. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 14, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context. Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by: Learners were not involved in learning activities nor exposed to a discussion session appropriate for the complexity of the learning context nor the level of academic standards of a gifted class. The learners were only exposed to a general teacher-directed lecture and then asked to define vocabulary words already used throughout the lesson. Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching and learning activities are appropriate for the complexity of the learning context; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.B.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that teaching and learning activities are appropriate for the complexity of the learning context. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 15, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.2 Teaching methods and learning tasks are implemented in a logical sequence. Deficiency: Teaching methods and learning tasks are not implemented in a logical sequence. This deficiency is evidenced by: Learning activities were not implemented in a logical sequence. The learners were asked to define the lesson's vocabulary words at the end of the lesson, even though they had already used the words throughout the lecture. Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching methods and learning tasks are implemented in a logical sequence; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.B.2; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that teaching methods and learning tasks are implemented in a logical sequence. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 15, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving. Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by: Learning activities did not engage learners in problem solving discussions. The lesson consisted of teacher-directed instruction and defining vocabulary words. The teacher did not provide learners with situations that require problem solving. Improvement Plan: Gain a better understanding through direct observation of a learning climate where learners are actively engaged and/or involved in critical analysis and/or problem solving; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator V.C.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that [l]earners are actively engaged and/or involved in critical analysis and/or problem solving. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 19, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by: The learners were not provided appropriate teaching aids nor materials to accommodate the range of individual differences among a gifted class. The teaching aids only consisted of the students using a textbook to define vocabulary words at the end of the lesson. Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching aids and/or materials are used properly and accommodate the range of individual differences among learners; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.C.2; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 20, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.6 Potential areas or points of difficulty in content and in learning tasks are emphasized as needed. Deficiency: Potential areas or points of difficulty in content and in learning tasks are not emphasized as needed. This is evidenced by: The learners asked questions that exhibited areas of difficulty and confusion throughout the lesson. The teacher did not clarify the points of difficulty appropriately. For example, a student asked, "From where do you get the delegates?" The teacher responded with statements including "I do not know the answer" and "I do not like politics." The teacher made no reference to the fact that research would be done to learn the answers to the learners' questions. Improvement Plan: Gain a better understanding through direct observation of a learning climate where potential areas or points of difficulty in content and in learning tasks are emphasized as needed; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.D.6; Timeline: Discuss and identify with the administrator techniques and strategies to be used to emphasize potential areas or points of difficulty in content and in learning tasks. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 20, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.A.4 Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by: The learners were not provided the opportunity to generate examples and share personal experiences related to the objective of elections. The lesson basically consisted of a lecture and defining words. Improvement Plan: Gain a better understanding through direct observation of a learning climate where learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator V.A.4; Timeline: Discuss and identify with the administrator techniques and strategies to be used in order that learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 21, 2004. Respondent timely submitted all of the logs he was required to keep in accordance with the Second PIP. Principal Valenzuela conducted the next formal observation of Respondent. The observation took place on April 24, 2004, when Respondent had an advanced sixth-grade geography class in his classroom. Respondent's performance during this April 24, 2004, observation was unsatisfactory. Principal Valenzuela met with Respondent on April 29, 2004, to discuss Respondent's unsatisfactory performance during the April 24, 2004, observation and to review the Professional Improvement Plan Principal Valenzuela had prepared for him following the observation (Third PIP). At this April 29, 2004, meeting, Respondent signed the Third PIP, indicating that he had "seen and received the document" on that date. The Third PIP accurately noted the deficiencies Principal Valenzuela had found during his April 24, 2004, observation of Respondent and prescribed activities designed to help Respondent correct these deficiencies. It read as follows: Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.A.3 There are no inefficient delays in organizational or teaching and learning activities. Deficiency: There are inefficient delays in organizational or teaching and learning activities. This deficiency is evidenced by: The learning activities reflected inefficient delays. The students were given a quiz. Initially, they were told that they had ten minutes. Five minutes into the test the teacher interrupted to add two additional questions. These questions were dictated. The teacher did not appear[] prepared for the dictation. The learners appeared confused. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.A.6 Directions necessary to implement learning tasks are clear and complete. Deficiency: Directions necessary to implement learning tasks are not clear and complete. This deficiency is evidenced by: Learners appeared confused after the teacher gave several directions. The teacher was not clear regarding a quiz. First, the quiz was scheduled to last ten minutes. Then the learners were asked to write short paragraphs, then a simple sentence. The teacher also added two questions at the end of the lesson that he acknowledged as covering material not previously taught. [T]he teacher interrupted the learners during the quiz. The quiz lasted 25 minutes. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context. Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by: The learners were not involved in complex learning activities. The activities involved whole group instruction and teacher directed lecturing and short answers.[10] The teacher used the textbook and a wall map during the lesson. The teacher questioned some of the learners one at a time. Low cognitive question such as WHAT type questions prevailed during the lesson i.e. What is the capital of Mongolia? Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.2 Teaching methods and learning tasks are implemented in a logical sequence. Deficiency: Teaching methods and learning tasks are not implemented in a logical sequence. This deficiency is evidenced by: Learning activities were not implemented in a logical sequence. The learners were asked questions about material not covered in class. The teacher discussed countries around China, which was the focus of the lesson, but did not discuss in depth the relationships of those countries. The learners were given directions about the quiz, but the teacher changed said directions several times. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by: The teacher did not use teaching aids properly. The teacher used a wall map, but only in passing. The teacher mainly lectured. There were lap maps and other visual aids in the room but were not used. The materials did not meet the needs of the advanced learners that made up that class. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.1 Learners have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. Deficiency: Learners do not have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. This deficiency is evidenced by: The learners were exposed to many low level cognitive questions, such as What was the name of the island that is called Taiwan today? The teacher did not allow time to integrate knowledge as the whole class was teacher directed lecture. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.6 Potential areas or points of difficulty in content and in learning tasks are emphasized as needed. Deficiency: Potential areas or points of difficulty in content and in learning tasks are not emphasized as needed. This deficiency is evidenced by: The teacher did not identify potential points of difficulty during the lesson. The learners appeared confused as the lesson progressed. The teacher did not elaborate on the learners['] concerns. Teacher directed lecture did not allow for points of interest to develop. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.A.4 Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by: The learners were not provided the opportunity to generate and share personal experiences related to the objective of the lesson. The teacher provided misleading information when he compared the Cuban guajiro to the [M]ongol[s] as similar. The cultures have no similarities.[11] The Cuban hut was made up of straw and adobe walls while the [M]ongol[s'] hut is made up [of] animal skins and wooden poles. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving. Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by: The learners were not actively engaged or involved in critical analysis. The lesson was teacher directed lecture to whole class group. The whole time was the same. The learners were never in small groups and the questions used were predominantly low cognitive level, i.e. What is the capital of Mongolia? Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. On May 18, 2004, in response to the directives contained in the Third PIP, Respondent submitted the following written statement to Principal Valenzuela: The following is a written reflective summary of self-assessment for Paces Component/Indicators II.[A].3, IV.A.6, IV.B.1, IV.B.2, IV.C.2, IV.D.1, IV.D.6, V.A.4, and V.C.1. Based on the many (more than 10) observations of other teachers I have had to conduct, I firmly believe that I am a good teacher of the subjects I am authorized to teach. Further, this self-assessment is reinforced by conversations with my peers, those who have had the opportunity to observe me in the classroom. Finally, I find it peculiar, to say the least, that for the first two years at this school I received spotless evaluations with regard to teaching, then right after a minor disagreement with Mr. Hernandez concerning the lesson plan format I was using and after I had applied for and received approval for a transfer, I suddenly became a worthless instructor.[12] Taking the position that this submission was not in compliance with the directives contained in the Third PIP, Principal Valenzuela sent Respondent the following memorandum, dated May 19, 2004: This memorandum is a formal notification that your reflections are incomplete. Each indicator needed to be addressed individually as per the Professional Development Plan. Please submit the completed assignment no later than Friday May 21st to avoid any further disciplinary action. Please also note that your final observation will take place either May 20th or May 21st. Please submit to me lesson plans, grade book, parent log and a sample work folder by Thursday May 20th. Your attention to this serious matter is important. On May 21, 2004, Respondent supplied Principal Valenzuela with a separate "self-assessment" summary for each deficiency noted in the Third PIP, but the body of each summary was identical to the body of the single summary that Respondent had initially submitted to Principal Valenzuela on May 18, 2004. Later that same day (May 21, 2004), Principal Valenzuela responded to these submissions by sending the following memorandum to Respondent: This memorandum is a second formal notification that the reflections submitted this morning, May 21st at 11:30 a.m. are still incomplete. It is obvious that you ignored the directives given in my memorandum dated May 19th, 2004. Please note that I reported the matter to the Office of Professional Standards as I mentioned in your classroom. I will be in your classroom Monday, May 24th to conduct the final observation. Your attention to this serious matter is important. As promised, Principal Valenzuela came to Respondent's classroom on May 24, 2004, (which was within 14 days of the close of Respondent's 90-calendar day probationary period) to conduct a formal observation of Respondent. Respondent was teaching an advanced seventh grade civics class, going over material for the final examination in the class. He "sped through the lesson" in a very disorganized and superficial manner without making any effort to obtain "feedback from the student[s]." Principal Valenzuela accurately determined that Respondent's performance was deficient with respect to the following "Required Indicators": II.D.1, IV.B.2, IV.B.3, IV.C.2, IV.D.1, V.A.1, V.A.4, V.B.1, V.B.2, V.C.1, VI.B.1, and VI.C.4. Principal Valenzuela had a post-observation meeting with Respondent, at which Respondent reviewed and signed the observation form on which Principal Valenzuela had noted Respondent's performance deficiencies during the May 24, 2004, observation. Based on Respondent's failure to have "satisfactorily corrected . . . noted performance deficiencies within the provided timeframe," despite having been "provided assistance," Principal Valenzuela recommended that Respondent's "contract be terminated." Respondent was provided written notification of this recommendation on May 25, 2004, and again on June 1, 2004. The Superintendent accepted Principal Valenzuela's termination recommendation. By letter dated June 21, 2004, the Superintendent informed Respondent that he was recommending that the School Board terminate Respondent's contract. Respondent responded by sending the Superintendent a letter, dated June 30, 2004, "request[ing] a hearing regarding [the Superintendent's] recommendation." The matter was referred to DOAH on July 6, 2004. On July 14, 2004, the School Board purported to take action to terminate Respondent's employment with the School Board.13
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board enter a final order terminating Respondent's employment in accordance with Section 1012.34, Florida Statutes, for failure to satisfactorily correct noted performance deficiencies. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 October, 2004.
The Issue Whether the School Board of Broward County, Florida (School Board) has just cause to terminate Respondent's employment based on the allegations set forth in the Administrative Complaint dated May 13, 2010.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. At all times material hereto, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract. At all times relevant to this proceeding, Respondent was assigned to Ashe Middle School where she taught reading and language arts. Respondent holds a Florida educational certificate that has both reading and gifted endorsements. During the time Respondent taught at Ashe Middle School, the school was considered a low performing school. There was a high level of student turnover and a relatively high number of foreign students who did not speak English. Respondent had an advanced reading class that read on grade level. Most of her other students read below grade level.1 Pursuant to a collective bargaining agreement (CBA) with Broward Teachers Union and applicable law, which will be discussed in the Conclusions of Law section of this Recommended Order, School Board has adopted a system to assess teachers known as Instructional Personnel Assessment System (IPAS). Subsection (F)(1)b of Article 18 of the CBA contains the following guiding principle: b. The School Board and BTU [Broward Teachers Union] acknowledge that the assessment process should recognize the professional nature of teaching and supervision. Educational research has not identified a single uni-dimensional construct called "effective teaching." Teachers must pursue a variety of models of effective teaching. It is recognized, moreover, that the educational environment is complex and variable and great weight should be placed on teacher judgment to guide the activities of student learning. Subsection F(2)(e) of Article 18 of the CBA requires that the principal, director, or his/her designee evaluate each employee at least once a year utilizing IPAS. Rating criteria are defined on the IPAS form in the following categories: Instructional Planning Lesson Management Lesson Presentation Student Performance Evaluation Communication Classroom Management Behavior Management Records Management Subject Matter Knowledge Other Professional Competencies The evaluator rates the employee as to each criterion and for overall performance. The rating can be "satisfactory", "needs improvement", or "unsatisfactory." Subsection F of Article 18 of the CBA describes IPAS. Pursuant to the CBA, the assessment system requires a teacher, whose performance has been deemed deficient in one or more areas by an appropriate school administrator, to be placed on a Performance Development Plan (PDP). A school administrator develops the plan and monitors the employee's progress in completing the plan. Subsection F(2)(m)2 of Article 18 of the CBA provides as follows as to the use and implementation of a PDP: Use and implementation of this plan requires identification of deficiencies, definition of strategies for improvement, definition of an assistance timeline, definition of expected outcomes, definition of possible consequences for failure to remediate, completion of assistance activities, and documentation. Subsection (F)(2)f of Article 18 of the CBA provides as follows: The following five (5) techniques are used to gather data on employee performance. Assessors use multiple techniques to understand actual performance and develop performance ratings. Informal classroom observations: Informal observations are made periodically by the principal or designee. A follow-up conference is not required subsequent to an informal classroom observation if performance is deemed satisfactory. Formal classroom observations: Formal observations are primarily initiated by the principal or designee. Employees may, however, request a formal observation. These are not less than 30 minutes in duration and are conducted by the principal, director or his/her designee. The 30 minute time period may be shortened by mutual agreement between the principal and the affected employee. All observations of employees for the purpose of assessment shall be conducted with the full knowledge of the employee. A conference is conducted after each formal observation. The FPMS [Florida Performance Measurement System] or other educationally sound observation instruments which may be used for formal observation.[sic] Observations in non-classroom situations: Principals use opportunities outside the classroom to observe the performance of employees. A follow-up conference is not required subsequent to this type of observation if performance is deemed satisfactory. Review of records and data: Principals review a variety of work samples prepared by the employee. These may include lesson plans, reports, grade card comments, discipline referral documents, etc. In addition, specific records or plans may be requested for review. A follow-up conference is not required if performance is deemed satisfactory. Review of performance portfolio: The principal or designee and the employee may mutually decide that a performance portfolio is needed to provide additional information for the completion of the assessment ratings. The design of a portfolio is determined by the principal and employee. A follow-up conference is not required if performance is deemed satisfactory. A teacher placed on a PDP is given 90 calendar days, excluding school holidays and vacations, to correct the identified performance deficiencies. If, at the end of the 90- day probation period, the performance of the employee remains at an unsatisfactory level for one or more of the assessment criteria, a rating of U (for unsatisfactory) is given. At that juncture, the administrator can extend the PDP period, or he/she can refer the matter to the Office of Professional Standards for further proceedings. Mr. Luciani was the principal and Mr. Muniz was an assistant principal at Ashe Middle School during the 2006-07 school year. On December 11, 2006, Mr. Muniz wrote a memo to Respondent. The memo is quoted verbatim because it targeted problems that continued throughout Respondent's tenure at Ashe Middle School. The memo is as follows: This correspondence is to document the last few week's [sic] events when it was determined that your job performance has been less than satisfactory in the following areas: Behavior Management-managing student behavior Records Management-management of data Communications Instructional Planning On December 7, while doing a classroom visit that lasted 31 minutes I noticed a lack of classroom management. It took almost seven minutes to get the class under control to start your lesson. While there were only 11 students in your room, yet, only five students were on task. You continued to do your lesson despite the disruptions. I am not sure if you were aware or just ignored the disruptions. In the last few weeks you have banished, kicked out, or attempted to kick out students everyday for almost twelve consecutive days. In the past Mr. Hart, Assistant Principal, and I have mentioned that the students should be accompanied by an escort or if you have a receiving teacher you should wait at the door until the child is situated. In at least five occasions your students have been caught wandering the halls because you have kicked them out. There have been many times while on hall duty that I noticed you kicking students out and the class has not yet started. This is unacceptable. You are responsible for the students in your class. When they are unescorted the possibility of injury exist [sic] due to your negligence. The students have not sat down and you attempt to remove them from class. This is also unacceptable. Prior to our recent data conference it was 12:15 in the afternoon and you requested to find out what data you needed at the conference. I directed you to Ms. J. Shakir[,] reading coach[,] who assisted you in securing minimal data for the conference. Please note that there had been four data presentations regarding preparation for the data conferences conducted by Mr. Fleisher and Ms. Lumpkin form c-net. Ms. Shakir and Ms. Pickney also conducted data disaggregation workshops in the previous weeks. While at the conference itself you appeared to know very little with regard to your student data. You were not familiar with your BMA results or the progress your individual students or classes had made. There was no attempt made at providing categorical breakdowns of students which needed prescriptive strategies to address their needs. The confrontational manner with which you speak to children is a direct factor in the lack of classroom management. Your lack of communication skills has led to referrals on many students which have led to major consequences for students after the referrals led to escalated verbal confrontations. During various grade level meetings, I have requested that all teachers provide me with emergency lesson plans every two weeks. To date I have not received any of these plans. Our expectations for each of the above listed concerns are: First and foremost, resolve the discipline problems in compliance with the policies of the school, rules of the District School Board and [sic] the State Board and Florida Statutes. Next, maintain consistency in all application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction. You must prepare for your students all day every day. Lesson plans must be meaningful and relevant to your content area. Studies show that students who are authentically engaged are less prone to deviant [sic] behavior. You must maintain complete order in your classroom. The Principles of Professional Conduct for the Education Profession in the State of Florida requires that the educator make reasonable efforts to protect the students from conditions harmful to learning, and/or to the students' mental, and/or physical health and/or safety. In the next few weeks you will be provided with assistance from behavior specialists, reading/curriculum coach and c-net personnel to assist you in meeting expectations. In February 2007 Respondent was placed on a PDP. Mr. Muniz monitored Respondent's progress and opined that she had not successfully completed the PDP. Mr. Luciani disagreed and instructed Mr. Muniz to give Respondent a satisfactory evaluation, which he did.2 Mr. Luciani was the principal and Mr. Hart was an assistant principal at Ashe Middle School during the 2007-08 and 2008-09 school years. Mr. Hart received a written complaint from a student that on October 1, 2008, Respondent told the student that the student's mother was unfit and did not know how to raise the student. In response to that complaint, on October 3, 2008, Mr. Hart issued Respondent a letter addressing the inappropriate manner in which she had addressed students, which included the following: On numerous occasions you have been counseled regarding your inappropriate comments/behavior towards students. This behavior includes embarrassing, disparaging, and/or awkward comments and/or actions. It has recently been brought to my attention that, once again, you have exhibited this behavior. * * * I am directing you to cease and desist all actions/comments of this nature immediately. You are to speak to students in a respectful, professional manner at all times. Mr. Hart, Respondent, and the student's parent met to discuss the alleged statements made by Respondent to the student. During that conference, Respondent became angry and left the meeting. Later, Mr. Hart met with Respondent to give her a copy of his letter dated October 3. Respondent took the letter and walked out of the meeting without signing the acknowledgment that she had received the letter. Respondent slammed the door as she left Mr. Hart's office. Mr. Hart received numerous complaints from parents and, as a result, transferred several students from Respondent's class to another class. On February 5, 2009, Mr. Hart observed Respondent arguing with a student in her classroom. He admonished her in writing to not be confrontational with students. Respondent's conduct on February 5, 2009, was inconsistent with Mr. Hart's admonishment to her on October 3, 2008. In an undated memorandum subsequent to January 20, 2009, Mr. Hart set forth the following issues that continued to be of concern despite his previous discussions with Respondent: Parent phone calls from her classroom Completing assignments Checking emails Inputting grades into Pinnacle (a computer database) Being prepared for instruction On February 18, 2009, Mr. Hart issued a written reprimand to Respondent for her failure to input student grades into Pinnacle. Respondent was placed on a PDP on February 13, 2009. Noted under the categories "Lesson Management" and "Lesson Presentation" were the failures to meet the following criteria: Orients students to classwork, specifies purposes of activities and relationship to the objectives; Prepares the classroom materials and equipment for the presentation of the lesson; Selects and uses appropriate instructional techniques including available materials and technology which support learning of the specific types of knowledge or skills; and Asks questions which are clear and require students to reflect before responding. During the PDP period that began February 13, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. On May 28, 2009, Mr. Hart completed an IPAS evaluation that rated Respondent unsatisfactory overall and as to the following five categories: "Lesson Management", "Lesson Presentation", "Student Performance Evaluation", "Classroom Management", and "Behavior Management." Mr. Hart rated Respondent satisfactory as to the remaining five categories. Mr. Hart placed Respondent on a second PDP that extended into the 2009-10 school year. At the end of the 2008-09 school year, Mr. Luciani retired. Before the start of the 2009-10 school year, Ms. Peebles became principal of Ashe Middle School. Respondent failed to enter grades and other data for students during the first marking period of the 2009-10 school year. That failure hindered the assessment of each student's needs and made it more difficult to monitor each student's progress. On November 19, 2009, Ms. Peebles conducted an IPAS evaluation for Respondent as to the PDP Mr. Hart had placed her on at the end of the 2008-09 school year. Ms. Peebles found Respondent to be deficient in the same five categories as Mr. Hart's evaluation, and she rated Respondent's overall performance as unsatisfactory. During the PDP period that began May 28, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. After her evaluation of November 19, 2009, Ms. Peebles had the options of referring Respondent to the Office of Professional Standards for further proceedings or placing Respondent on another PDP. Ms. Peebles elected to place Respondent on another PDP (the last PDP) because Ms. Peebles was new to the school and she wanted to give Respondent another chance to prove herself. At the conclusion of the last PDP, Ms. Peebles conducted an IPAS evaluation, which was dated April 19, 2010. Respondent remained unsatisfactory in the same five categories as the previous evaluations by Ms. Peebles and Mr. Hart, and her overall evaluation remained unsatisfactory. Throughout her employment at Ashe Middle School, Respondent exhibited a pattern of being absent on Fridays and Mondays. Respondent failed to correct that deficiency after having been counseled by administrators. During the 2009-10 school year, Respondent repeatedly failed to timely provide or leave appropriate lessons after having been counseled by administrators to do so. Respondent was instructed to give her lesson plans to Ms. Brown, the Reading Coach and Reading Department Chairperson, during that school year. Respondent never provided Ms. Brown a complete set of lesson plans the entire year. During the 2009-10 school year, Respondent repeatedly failed to demonstrate that she could control her classroom. She made multiple calls to security on nearly a daily basis and she continued to kick students out of class, which left them in the hallways, unsupervised. The Benchmark Assessment Test (BAT) is a county created test that is administered twice a year in September and again in November. The test is designed to measure the progress, if any, the student has made between the testing dates. The test is also used as a predictor for the Florida Comprehensive Achievement Test (FCAT). The vast majority of Respondent's student's test scores depict either no growth or a regression in all classes. A Mini-BAT is an assessment tool used to develop and provide effective lesson plans as well as student growth. The teacher is responsible for administering the assessment tool to her students and thereafter inputting the results in the computer database. During the 2009-10 school year, approximately half of Respondent's students either were not tested or had no score inputted after being tested. The DAR Assessment is a two-part standardized test designed to measure a student's ability at word recognition and all reading frequency. The test is administered twice a year, once in September and again in January. Ms. Brown administered the tests at Ashe Middle School during the 2009-10 school year. Ms. Brown scored the tests and gave the score results to Respondent, who was required to input the scores in the computer database. The Florida Department of Education (DOE) requires that 90 percent of the students complete the tests, which gives a 10 percent leeway for students who are absent on test days. Students are placed in reading classes based on their test result. The tests also measure each student's progress, or lack thereof, between the test dates. Forty-five percent of Respondent's students had no scores. Nineteen percent of those with scores had no gain. Mock FCATs are periodically administered to students following Mini-BATs. The Mock FCATs administered to Respondent's students during the 2009-10 school year were created by Ms. Brown. Ms. Brown utilized previous iterations of the FCAT that had been released by DOE in an effort to simulate the actual FCAT process in terms of difficulty and complexity. The tests are graded by computer and the scores are given to the teacher to input into the computer database. The results of the Mock FCATs are used to develop instructional plans for students. Sixty-three of Respondent's 111 students (or 57 percent) had no score inputted in the computer database. Nine students who did receive a score made no progress between the dates of the two tests. School Board entered into a contract with a consulting firm named Evans Newton, Inc. (ENI) to assist schools in need of improvement. In 2009-10 school year, ENI provided an assessment test that teachers were to use to monitor students' progress. Respondent administered the assessment test to her class, gave the results to Ms. Brown to score, and recorded the scores in the computer database after receiving the scored results from Ms. Brown. More than 40 percent of Respondent's students had no score recorded for the assessment test. Ms. Brown testified, credibly, that she returned all scored results to Respondent. The lack of a score for over 40 percent of her class can only be explained by Respondent's failure to do her job. Respondent either did not administer the test to those students, she did not give the test results to Ms. Brown to score, or she did not input the scores in the computer database after receiving the results from Ms. Brown. The FCAT Reading Learning Gain is the document through which DOE reports test score results to school districts. During the 2009-10 school year, DOE required a 60 percent learning gain. Respondent's students did not achieve that goal during that school year. For three of the four years she taught at Ashe Middle School, Respondent's classes failed to achieve their FCAT goals. The administrators at Ashe Middle School followed all applicable procedures in formulating and implementing the PDPs and IPASs at issue in this proceeding. After her IPAS evaluation of April 19, 2010, Ms. Peebles referred Respondent's case to the Office of Professional Standards, which resulted in the termination proceedings at issue.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this May 23, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2011.
