The Issue The issues in this case are: (1) whether Respondent failed to correct performance deficiencies, thereby justifying termination of her employment as a teacher pursuant to section 1012.34; and (2) whether just cause exists, pursuant to section 1012.33, for Petitioner to suspend Respondent without pay and terminate her employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1001.32, Florida Statutes. At all times relevant to this proceeding, Respondent was employed as a teacher in the Miami-Dade County Public School District pursuant to a professional services contract. Respondent has been a teacher for approximately 14 years. She began teaching full-time at Gulfstream in the 2004- 2005 school year. During her years at Gulfstream, she taught fifth, third, and second grades, and in the 2010-2011 school year she was a co-teacher assigned to assist other teachers in instructing their students. In the 2011-2012 school year, and in the 2012-2013 school year until she was suspended pending the outcome of this proceeding, Respondent was a first grade teacher at Gulfstream. At all times relevant to this proceeding, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies and procedures, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. The Events Giving Rise to this Proceeding Section 1012.34(3), Florida Statutes, mandates that instructional personnel, including classroom teachers, be evaluated for performance at least once a year. Pursuant to section 1012.34(3), the performance evaluation consists of two components: a student performance component and an instructional practice component. The former is based on student scores on the Florida Comprehensive Assessment Test ("FCAT"), or, for subjects and grade levels not measured by the FCAT, on school district assessments as provided in section 1008.22(8). The latter is based on instructional performance indicators that are evaluated based in part on classroom teaching observations. 2011-2012 School Year March 27, 2012 Evaluation In the 2011-2012 school year, approximately 17 students were assigned to Respondent's first grade class. Pursuant to section 1012.34(3)(a)2., in connection with Respondent's annual evaluation, Gulfstream Principal Concepcion Santana conducted a formal observation of Respondent's instructional practices in her classroom on March 27, 2012, as she taught reading/language arts. She observed Respondent for 40 minutes. In evaluating Respondent, Santana followed the Instructional Performance Evaluation and Growth System ("IPEGS"), the system used throughout the Miami-Dade County Public School District to evaluate instructional personnel. IPEGS consists of eight performance standards that constitute the minimum standards a teacher must meet in classroom instruction. These standards are based on the Florida Educator Accomplished Practices adopted by the State Board of Education, as required by section 1012.34(3)(a)2. Four of the IPEGS performance standards are observable during the classroom instruction portion of the evaluation. The other four are "not observable," meaning that they target performance standards that may not necessarily be observed at the time of the classroom instruction performance evaluation.1/ Santana found that Respondent's instructional practices were deficient with respect to the four observable performance standards ("PS"): Knowledge of Learners (PS 2), Instructional Planning (PS 3), Instructional Delivery and Engagement (PS 4), and Learning Environment (PS 8). PS 2 requires the teacher to identify and address the needs of learners by demonstrating respect for individual differences, cultures, backgrounds, and learning styles. Santana observed that Respondent failed to meet PS 2. Specifically, Respondent did not tailor her teaching to address the various learning styles and levels of the students in her classroom; rather, she presented the lesson in a manner that addressed only one learning level, so that some of the students were not learning. PS 3 requires the teacher to use appropriate curricula, instructional strategies, and resources to develop lesson plans that include goals and/or objectives, learning activities, assessment of student learning, and home learning in order to address the diverse needs of students. Respondent failed to meet PS 3. The activities she conducted did not directly conform to her written lesson plan. Specifically, the students were reading a story that was not identified on the lesson plan, and completing workbook pages that were not identified in the lesson plan while skipping others that were identified in the plan. As a result, the focus and purpose of the lesson being taught was not addressed in the lesson plan. Additionally, the lesson plan did not incorporate multiple instructional strategies to meet the learning needs of all of the students. Respondent failed to use a variety of resources and questioning techniques to cater to the range of learning styles and levels of her students and encourage higher level thinking; rather, the instruction presented that day catered to rote learning. PS 4 requires the teacher to promote learning by demonstrating accurate content knowledge and by addressing academic needs through a variety of appropriate instructional strategies and technologies that engage learners. Respondent also failed to meet PS 4. She did not deliver the instruction at a pace appropriate to engage all students. Additionally, her instructional delivery failed to incorporate a range of strategies so that again, not all students were engaged in the lesson. As a result, many students were off-task, and frequent interruptions distracted students who otherwise were on-task. PS 8 requires the teacher to create and maintain a safe learning environment while encouraging fairness, respect, and enthusiasm. Respondent failed to meet PS 8. Santana noted that there appeared to be little evidence of specified classroom procedures that the students understood and followed, so as to create an environment conducive to learning. As a result, students were up out of their seats, asking to go to the restroom, and fiddling with their papers and pencils. Following the observation, Santana documented her observations on a form titled "IPEGS Observation Standards Form- Teacher" ("IPEGS Form"). In compliance with section 1012.34(3)(c), Santana notified Respondent in writing of a scheduled support dialogue meeting. The purpose of the support dialogue meeting was to provide feedback regarding the classroom observation and to discuss strategies and supportive actions that could be provided to Respondent to assist her in remediating her deficiencies and improving her instructional performance. Santana's support dialogue meeting with Respondent took place on March 29, 2012. Present at the meeting, in addition to Santana and Respondent were a UTD representative; a reading coach, Mariela Rapp; and an assistant principal. Santana provided the completed IPEGS form for the March 27 classroom observation to Respondent and discussed with her the observed deficiencies, including instructional strategies that she could have incorporated into the lesson to make it more effective. Rapp and another reading coach, Lynn Carrier, were assigned to provide support to Respondent, and strategies to assist her were devised. Respondent was informed that she had 21 days in which to implement the actions prescribed in the support dialogue meeting, and that at the end of that period, Santana would conduct another classroom observation. April 25, 2012 Evaluation Santana conducted another formal classroom observation of Respondent's teaching on April 25, 2012. This time, she observed Respondent for the entire reading/language arts instructional block lasting two hours. Respondent did not meet PS 2. Again, she did not incorporate instructional strategies to cater to the learning styles and levels of all students in her class. Santana noted that Respondent's instructional performance on this standard was very similar to that she had observed on March 27, 2012. Respondent also failed to meet PS 3. Specifically, she did not incorporate a variety of instructional strategies in her lesson plans to meet the varied needs of the students in the class. As a result, she failed to address the diverse learning needs of her students as required by PS 3. Similarly, Respondent failed to meet PS 4. Once again, Respondent's instructional delivery and engagement techniques failed to keep many students on-task. Santana attributed that to Respondent's failure to adequately pace the lesson or to effectively provide differentiated learning experiences to meet the students' varied learning styles and levels. Santana further noted that the lesson was disorganized. Respondent created differentiated learning centers at which the students would engage in various learning activities; however, she provided no guidance, so the students were unable to effectively engage in the activities for which the centers were prepared. Specifically, at the computer-based learning center, the computers were not prepared for the instructional activity, so time was wasted logging onto the computers; consequently, the students had little time to work on the activity. At another learning center involving a device called "Leap Pad," the books and accompanying cassette cartridges were not grouped together, so the students spent time trying to find the matching books and cartridges and, as a result, wasted what was supposed to be instructional time. Because of these problems, students repeatedly interrupted the teacher-led instructional center, interfering with learning at that center. Respondent again failed to meet PS 8. Respondent's failure to establish classroom procedures for the various learning centers and her lack of success in redirecting off-task students to reengage in the assigned learning activities created a disruptive environment that did not promote student learning. Following the April 25, 2012, observation, Santana completed another IPEGS Form. Because Respondent showed no improvement from the March 27, 2012, observation, Santana scheduled a conference for the record ("CFR"). A CFR is a formal meeting to discuss a teacher's performance deficiencies and develop a plan to remediate those deficiencies. Respondent was notified in writing of the CFR, which was rescheduled per Respondent's request. Respondent attended the meeting with two UTD representatives; also attending were Rapp and an assistant principal. By written notice and at the CFR, Respondent was informed that she was being placed on 90-day performance probation, pursuant to section 1012.34(4), as of the date of the CFR. An IPEGS Improvement Plan ("IP") was developed to assist Respondent in remediating her instructional performance deficiencies. An IP is a written document that discusses each performance deficiency; identifies specific resources available to assist the teacher in remediating each specific deficiency; sets forth remedial activities specific to each deficiency in which the teacher and assisting persons are to engage; and establishes deadlines for completing the specified activities. In the IP, Respondent and reading coaches Rapp and Carrier were directed to work collaboratively to improve Respondent's instructional techniques and pacing so as to engage all students in the lessons. To this end, Rapp and Carrier were to assist Respondent in developing lesson plans and identifying instructional strategies and activities to meet the learning needs of all of her students. Additionally, Respondent was given the opportunity to engage in collaborative planning with her peer professionals (i.e., other first grade teachers) and with the reading coaches. She also was provided access to a nationally board certified teacher at Gulfstream who assists teachers in improving their teaching performance. The IP further directed the reading coaches and peer professionals to observe Respondent and provide constructive feedback and assistance to Respondent as she attempted to implement instructional techniques and strategies. The IP also identified Common Core Standards, reading/language arts pacing guides, and reading/language arts planners as resources available to assist her in developing appropriate planning objectives, appropriately pacing her lessons to address her students' needs, and developing her lesson plans. As part of the IP, Santana directed Respondent to prepare a written plan addressing how she would tailor her instruction to address student learning styles; use appropriate instructional materials and techniques; and use differentiated instructional groups and learning centers. The written plan was to be submitted to Santana by May 29, 2012. Respondent was further directed to develop lesson plans to improve her instructional delivery strategies. Those plans were to be submitted to the assistant principal. The IP directed Respondent to read the book "How to be an Effective Teacher: The First Five Days of School" and to submit to an assistant principal a reflective summary discussing effective strategies for addressing inappropriate student behavior and managing the learning environment. Respondent also was directed to consult with the reading coaches and peers to develop effective strategies for redirecting inappropriate student behavior. To assist Respondent in implementing her IP, Santana prepared a support calendar that detailed, on a weekly basis for a 21-day period, the activities in which Respondent was to engage. The support calendar specifically identified the reading coaches, peers, and other professionals responsible for working with Respondent as she performed the assigned activities. During the first week of the IP implementation period, Rapp provided assistance to Respondent in planning for the reading/language arts instructional block that would be conducted the following week. Respondent worked with Rapp to interpret current Florida Assessments for Instruction in Reading ("FAIR") testing data and use the data to effectively plan for differentiated instruction. Also during the first week, Respondent observed reading/language arts instruction in a peer's classroom and participated in a debriefing session with Rapp and Carrier after the peer teaching observation. The following week, Respondent participated in an activity cycle during which she collaboratively planned with reading coaches Rapp and Carrier; observed peers teaching reading/language arts; observed Rapp modeling effective reading/language arts teaching strategies and techniques; co- taught reading/language arts with Rapp to practice these strategies and techniques; and taught the reading/language arts block while being observed by Rapp and Carrier. This same activity cycle, consisting of collaborative planning,2/ reading coach and peer modeling and observation, co- teaching, and teaching by Respondent, was repeated in the final week of the IP implementation period. Collectively, these activities were designed to assist Respondent in planning for the use of content and instructional techniques and strategies appropriate for her students. They also demonstrated to Respondent how to identify and implement effective instructional techniques and strategies, provided assistance as she learned to implement these techniques and strategies, and afforded the opportunity for Respondent to benefit from constructive feedback regarding her efforts to utilize these techniques and strategies. On May 16 and May 24, 2012, Rapp and Carrier observed Respondent as she taught a reading/arts lesson. In the lesson, she was to employ the instructional techniques and strategies that had been provided and presented to her by the reading coaches, peer professionals, and reference resources during the implementation of her IP. According to Carrier, Respondent did not adhere to the prepared lesson plan and did not incorporate the techniques and strategies that had been provided to her by the reading coaches and peer teachers through her IP.3/ Shortly after Respondent completed the activities set forth in the IP, the 2011-2012 school year ended. Condition of Respondent's Classroom in 2011-2012 At the beginning of the 2011-2012 school year, Respondent had been assigned to a free-standing portable classroom not located in the main building at Gulfstream. In late September or early October 2011, Respondent complained to Santana about the air quality in her classroom—— specifically, that there was musty smell that made it difficult for her to breathe and aggravated her allergies. Santana contacted Mr. Cruz-Munoz of the Miami-Dade Public Schools asbestos management division to inspect Respondent's classroom. Within a couple of days, Cruz-Munoz conducted the inspection and found no visible mold or mildew. He noted that the musty smell was typical of portables, like Respondent's classroom, that were older and had wood paneling. He noted that although the room generally was clean, it contained many boxes and a large amount of clutter, both of which may attract dust. He recommended that the boxes and clutter be kept to a minimum to prevent dust collection. Within a week, Respondent's classroom was thoroughly cleaned by a maintenance crew. After the classroom was cleaned, Respondent complained to Santana that she noticed a cleaner smell. Santana contacted Cruz-Munoz, who assured her that the cleaners were water-based and did not contain allergens. Santana informed Respondent of this and suggested that the cleaner smell would dissipate over time. In January 2012, Respondent again complained to Santana about the smell of the classroom and that it was aggravating her allergies. Santana again contacted Cruz-Munoz, who arranged another inspection of the classroom. The inspector again reported that the classroom generally was clean and free of visible mold and mildew but contained many boxes; again, the importance of minimizing the number of boxes and clutter so as to avoid collecting dust was stressed. At that point, Santana referred Respondent to workers' compensation so that she could obtain medical attention to address her health issues. At some point in January 2012, Respondent contacted Robert Kalinsky, a regional director with the Miami-Dade Public School system, regarding the air quality and odors in her classroom. Kalinsky was one of Santana's supervisors at the time. Kalinsky notified Santana that Respondent had contacted him and that he also had received a call about about the condition of the classroom from a member of the Miami-Dade County School Board. As a result, Kalinsky paid a visit to Gulfstream. On February 7, 2012, Santana met with Respondent and an assistant principal regarding a number of issues, including the condition of Respondent's classroom. At that meeting, Santana noted that during the recent visit by Kalinsky and personnel who inspected the classroom, the room was observed cluttered with piles of paper on the desk and many other areas, and that there numerous boxes. At the meeting, Santana reminded Respondent regarding many other issues, including those related to classroom and school library procedures and instructional delivery. Effective February 7, 2012, Santana reassigned Respondent to a different classroom that was located in the main building at Gulfstream. Thereafter, Respondent did not have any complaints about the air quality or odors in the classroom to which she had been assigned. She did continue to complain about the odor of air fresheners and scented candles used throughout the school. Santana noted that she regularly dealt with issues similar to those raised by Respondent because she received frequent complaints from teachers regarding the air quality, mold, and odors at Gulfstream due to the school building's advanced age. Santana credibly testified that she never, at any point, became angry with Respondent regarding her concerns about the air quality and odor in the portable classroom, or any actions Respondent that had taken to address those concerns. 2012-2013 School Year Pursuant to section 1012.34(4)(b)1., school vacation periods are not counted as part of the 90-day performance probation period. Accordingly, Respondent's probation period carried over from the end of the 2011-2012 school year to the 2012-2013 school year. When the 2012-2013 school year commenced, her 90-day probation period continued. September 12, 2012 Evaluation On September 12, 2012, Santana formally observed Respondent's classroom teaching for the third time. She observed Respondent for the full duration of the reading/language arts block, approximately two hours. Respondent again failed to meet PS 2. Her instruction did not incorporate techniques and strategies to address the various learning styles and levels of the students in her class. As a result, many students were bored; one student was observed with his head on his desk. Other students attempted, unsuccessfully, to get Respondent's attention to answer questions they had. Respondent was unsuccessful in explaining the small group activities so that several students were off- task. By the time Respondent redirected the off-task students, little time was left for them to engage in the planned activities. Santana observed no improvement in Respondent's performance on this standard when compared to the two previous observations. Likewise, Respondent failed to meet PS 3. She did not develop or present a lesson that addressed logical, sequential goals and objectives and she did not cover the material identified in the lesson plan. Once again, she failed to use differentiated instructional techniques and strategies to address the students' individual learning styles. The lesson was directed only at one skill level and one learning style. Worksheet activities were completed by the entire class, with some students calling out the answers while the others copied those answers on the worksheet. The partner reading portion of the exercise was disorganized and the students were not given adequate direction, so that many students did not understand how the activity was to be conducted. Santana did not observe any improvement in Respondent's performance on this standard. Respondent also failed to meet PS 4. Her teaching did not include activities directed at eliciting higher order thinking, so did not engage all of the students. Several students were overheard saying they were bored, had already read the material, or already knew the concepts being presented. Other students were off-task, reading stories that had not been assigned. When students were assigned to small groups, insufficient direction was given so that many students did not understand what they were to be doing. In particular, the lack of organization with respect to the computer-based portion of the lesson resulted in students wasting a substantial amount of time before being re-directed to the assigned task. Santana did not observe any improvement in Respondent's performance on this standard. Respondent again failed to meet PS 8. Santana noted that the learning environment and activities were not academically challenging and did not engage all of the students. Students were not given adequate instruction on the activities in which they were to be participating. In particular, the partner reading portion of the exercise was disorganized and many students did not understand how the activity was to be conducted. Santana did not observe any improvement in Respondent's performance on this standard. Following the September 12 evaluation, Santana completed the IPEGS Form, conducted another performance review with Respondent, and issued another IP for her on September 18, 2012. Once again, the reading coaches and peer professionals were made available to assist Respondent in implementing the IP. The Common Core Standards, reading/language arts pacing guides, and reading/language arts planners also were resources to which Respondent was referred. The activities in which Respondent was directed to engage to correct her performance deficiencies for PS 2 and PS 3 were very similar to those identified her May 7, 2012 IP. With the new school year, Respondent had a new class of students, and Santana emphasized the importance of Respondent being able to assess those students' learning styles and levels and to plan how she would assign them to instructional groups. Respondent was directed to prepare and submit to the assistant principal weekly lesson plans containing goals, objectives, activities, and strategies to provide instruction aimed at the her students' diverse learning styles and levels. To help Respondent correct her PS 4 deficiencies, the IP emphasized that Respondent was to observe the reading coach (Carrier) and her peers as they modeled effective instructional techniques and activities designed to reach diverse student learning styles and levels. To correct her PS 8 performance deficiencies, Respondent was directed to work with the reading coach and peers to establish a plan for effective classroom procedures, to prepare a written summary of the plan, and to provide the summary to the assistant principal. Additionally, Respondent was directed to observe peer professionals as they taught; to prepare and provide to the assistant principal a list of the effective teaching techniques she observed; and to incorporate three of those techniques into her classroom teaching. She also was directed to maintain a log of teaching techniques she used in her class, with discussion of which techniques were effective or ineffective and why. The log was to be provided to and discussed with Carrier, so that Carrier could assist Respondent in developing and implementing successful classroom techniques and procedures. Again to ensure that everyone involved in implementing Respondent's IP understood their roles and responsibilities, Santana established another 21-day support calendar detailing the specific activities to be conducted on specific days. The activities entailed collaborative planning with Respondent, Carrier, and grade level peers; Respondent working with Carrier and peers to develop small group and differentiated instructional teaching techniques; Respondent's observation of grade level peer teaching and post-observation debriefing regarding instructional best practices; and Respondent's implementation of those best practices in her teaching, to be observed by Carrier, with feedback provided. Respondent engaged in all scheduled activities and timely completed the September 18, 2013, IP. October 11, 2012 Evaluation On October 11, 2012, a fourth formal classroom observation of Respondent was conducted, this time by assistant principal Marybel Baldessari. Baldessari observed Respondent teaching reading/language arts for an hour and a half. Once again Respondent failed to meet PS 2, 3, 4, and 8. With respect to PS 2, Respondent again failed to present differentiated instruction that targeted individual student learning styles and levels; as before, her instruction was aimed only at one learning style and level. With respect to PS 3, Respondent did not ensure that materials were properly organized to accommodate assistance by an interventionist who was working with her that day. As a result, the lesson was disorganized and the lesson was not presented in a logical, sequential manner. With respect to PS 4, again Respondent's instruction was not tailored to meet the students' individual learning styles and levels. Respondent did not appropriately pace the lesson and did not employ teaching techniques, such as appropriate questioning, to encourage students' critical thinking. Respondent again failed to meet PS 8. Students were off-task; in particular, one was off-task for the entire observation period without ever being redirected to the assigned activity. Respondent also had implemented a behavior plan in the classroom involving colored cards, so that when a student was disciplined, he or she was sent to a "behavior wall" to turn over a card on the behavior chart. On this day, a student who was sent to the behavior chart found his card already turned over from the previous day. This evidenced Respondent's lack of attention to detail in maintaining a classroom environment conducive to appropriate student behavior. Baldessari documented Respondent's deficiencies from the October 11, 2012, observation on the IPEGS Form. Santana scheduled a meeting with Respondent on October 17, 2012, to discuss Baldessari's observations. At the meeting, Respondent was given yet another IP. With respect to remedying Respondent's PS 2 performance deficiencies, Respondent was given the same support resources. Respondent was again directed to meet with Carrier and grade level peer professionals to develop differentiated instructional activities and techniques, to incorporate those activities and techniques into lesson plans, and to provide those lesson plans to Baldessari. Respondent also was directed to meet with Carrier and peers to analyze test and observational data, and to use the information gleaned from that data to plan for differentiated instruction based on individual student learning styles and levels. To remedy her PS 3 deficiencies, Respondent was again referred to Carrier and peer professionals, the Common Core Standards, reading/language arts pacing guides, and reading/language arts reading planners. She was again directed to work with Carrier to develop appropriate lesson plans incorporating appropriate instructional strategies. These plans were to identify appropriate goals, objectives, activities, and instructional strategies and were to be provided to Baldessari. Respondent was assigned to read the book, "Understanding Common Core Standards," and to discuss those standards with Carrier and provide a written summary to Baldessari. With respect to PS 4, Respondent was referred to the same remedial resources as for PS 3. Respondent was directed to work with Carrier and selected peer professionals, who would assist her with planning and developing instructional techniques and strategies to appropriately pace lessons and engage all students. With respect to PS 8, Respondent was directed to work with a special education program ("SPED") specialist to develop effective classroom management procedures. She was assigned to prepare and submit a written summary of these procedures to Baldessari. She also was directed to observe peers, identify effective teaching techniques they used to maintain an academically stimulating and challenging environment, submit a list of those techniques to Baldessari, and incorporate three of those techniques into her teaching. Once again, she was directed to maintain a log listing instructional techniques she used, with discussion of which were effective or ineffective and why. The log was to be provided to and discussed with the Carrier so that she could assist Respondent in developing successful classroom techniques and procedures. Those techniques were to be implemented in Respondent's classroom teaching. Santana developed another support calendar to implement Respondent's latest IP. The support calendar identified activities in which Respondent was to engage with Carrier and the SPED specialist; scheduled time for Respondent to observe and discuss peer teaching techniques; and scheduled collaborative planning sessions in which Respondent, Carrier, and grade level peers were to address the development of differentiated instructional strategies. Carrier worked closely with Respondent to implement the October 17, 2012, IP. In doing so, Carrier demonstrated to Respondent how to incorporate certain instructional techniques into her teaching to better engage the students and enhance their learning experience.4/ Carrier stressed the importance of organization and preparation before the lesson in order for the instructional techniques to be effective. Carrier and Respondent also practiced the use of the instructional techniques. However, when it was time for Respondent to teach the lesson, she was disorganized and unprepared, resulting in a substantial amount of time being wasted on logistical matters, such as having essential materials on hand and ready for use, that should have been addressed before the lesson commenced.5/ Carrier also discussed with Respondent the importance of moving around the classroom to keep students focused and on- task. Nonetheless, Carrier observed that Respondent spent most of her time sitting in a chair in front of the classroom. The chair did have wheels, so occasionally Respondent would roll down the center isle of the classroom.6/ During her time in working with Respondent, Carrier observed that Respondent's classroom was messy and disorganized. Books and clutter were all over the place, so that it was difficult to locate resources that were needed to conduct the lessons. Carrier also observed that there were many pieces of information written on the board in an unstructured, disorganized manner, including information from lessons days ago and random vocabulary words, so that it was very difficult to decipher the information Respondent was attempting to convey in using the board. Carrier further noted that words frequently were misspelled and that there were grammatical errors in the information Respondent wrote on the board. Respondent timely completed the activities set forth in the October 17, 2012, IP. November 19, 2012 Evaluation On November 19, 2012, Santana conducted a fifth formal observation of Respondent's classroom teaching. She observed Respondent teaching reading/language arts for an hour and five minutes. Respondent again failed to meet PS 2. Once again, Respondent's instruction provided only one level of complexity and did not cater to the students' different learning styles and levels. The students were reading a story, and instead of incorporating instructional strategies aimed at meeting all students' learning abilities——such as instructing the high level students to write a paragraph, the grade level students to write a sentence, and the lower level students to draw a picture, about the story——she merely had all of them fill in the same workbook page. Respondent did not exhibit any improvement with respect to meeting PS 2. Respondent also failed to meet PS 3. Her lesson plans were not aligned to the instructional pacing guide and did not incorporate strategies to address the students' diverse learning styles and levels. Respondent did not exhibit any improvement with respect to PS 3. Respondent again failed to meet PS 4. Her instructional delivery did not actively engage the students and did not address their individual learning styles and needs. Because her instruction addressed only one level of complexity, she lost the high functioning and low functioning students. As a result, there were frequent interruptions that interfered with the pace of the instruction and caused students to engage in off-task behavior. Respondent did not exhibit any improvement with respect to PS 4. Respondent also failed to meet PS 8. The learning environment was neither challenging nor stimulating. Although the students were working in small groups presumably established according to learning style and level, they nonetheless were reading the same story and answering the same questions. That, and Respondent's continued failure to establish clear classroom procedures and expectations, resulted in frequent interruptions and distractions. Respondent did not exhibit any improvement with respect to PS 8. Recommendation to Terminate Respondent's Employment A post-observation meeting was held on November 29, 2012, and Respondent was properly notified of this meeting. At the meeting, Santana informed Respondent that she had failed to remediate her classroom performance deficiencies within the 90- day probation period, so that she (Santana) was recommending that Respondent's employment contract be terminated. Santana prepared a memorandum to the Miami-Dade Public Schools South Regional Director dated November 29, 2012, detailing Respondent's repeated failure to meet PS 2, PS 3, PS 4, and PS 8. The memorandum also stated: "Data indicate that this employee has not demonstrated corrective action." The memorandum recommended termination of Respondent's employment contract. Petitioner presented evidence, consisting of a summary exhibit and testimony from Gisela Field, the administrative director of the Office of Assessment, Research, and Data Analysis for Miami-Dade Public Schools, that Respondent's students' median percentile scores on the 2012 Stanford Achievement Test ("SAT")7/ for Grade 1 for both language arts and mathematics were below those for first grade students at Gulfstream as a whole, and for first grade students in the Miami-Dade County Public School District.8/ Santana did not testify that Respondent's students' SAT median percentile scores were considered in her evaluation of Respondent, or that they constituted a basis for her decision to recommend that Respondent be terminated. Petitioner asserts that the "data" to which Santana's November 29, 2012, memorandum refers are Respondent's students' SAT median percentile scores, evidencing that Santana did consider these scores in evaluating Respondent, and that they were one of the bases for her recommendation that Respondent be terminated.9/ Petitioner did not present any evidence regarding the relative weight given to Respondent's students' scores in conducting her performance evaluation. Respondent's Defenses Respondent began teaching in the Miami-Dade County Public School system in 1989. Thereafter, she took some time off to have children. As previously noted, she resumed fulltime teaching in the 2004-2005 school year. For the period commencing with the 2004-2005 school year, through the 2010-2011 school year, Respondent always received satisfactory classroom performance evaluations.10/ At the final hearing in this proceeding, Respondent testified that she was knowledgeable in preparing lesson plans; adhered to Miami-Dade County Public School District instructional pacing guidelines; engaged in collaborative planning with her colleagues and exchanged ideas regarding making the lessons exciting, fun, and interesting; used objectives, visual aids, posters, computers, books, and hands-on materials to engage students; and employed instructional techniques to address students' diverse learning styles and levels. She further testified that she closely observed her students and obtained feedback from them throughout the instructional day. Respondent also testified that she engaged her students in activities designed to get to know them, that she was sensitive to her students' experiences, that she attempted to make them feel comfortable and safe and to provide a warm and loving environment, and that she knew how to communicate with them and manage their classroom behavior. With respect to specific performance deficiencies identified over the course of the classroom observations conducted by Santana and Baldessari, Respondent asserted that some of the issues with instruction using computers stemmed from technical issues with the computers. In those instances, Respondent would have the students engage in reading activities using books until it was time for them to rotate to another learning center. Respondent believes she was a better teacher in 2011 than she was in 2004 when she re-entered the teaching field fulltime. In her view, this is due to her having participated in personal development workshops, receiving one-on-one instruction, and adapting her teaching style to new curriculum and materials. Respondent asserts that she did not teach any differently in the 2011-2012 and 2012-2013 school years than she had in the 2004-2005 school year or any other school year. Respondent contended that she is, and always has been, a very competent teacher, and that the negative performance evaluations she received during the 2011-2012 and 2012-2013 school years were unfair and illegitimate. Regarding the condition of the portable classroom to which she was assigned in the 2011-2012 school year, Respondent began to complain to Santana about the room's odor shortly after the beginning of the school year. In January 2012, she did contact Santana's supervisor Robert Kalinsky to express her concerns. Ultimately, she filed a worker's compensation claim. Once she moved to a different classroom in February 2012, she no longer experienced problems with odors in her classroom. She did continue to have problems with the use of air fresheners and scented candles in other parts of the school building. Respondent noted that only after she complained about the odor and air quality in the portable classroom did she begin receiving negative classroom performance evaluations. She contends that she received negative evaluations for having complained——particularly to Kalinsky and the School Board member——about the condition of the portable. Toward the end of the 2011-2012 school year, Respondent applied for a transfer from her instructional position at Gulfstream to another instructional position at another school in the Miami-Dade County Public School District. Both Santana and the Executive Director approved the transfer. Respondent found an instructional position in another school in the Miami-Dade County Public School District, but did not follow through with the transfer. The school was farther from her home than was Gulfstream, so teaching there would entail longer driving time and would add wear and tear to her older vehicle.11/ Findings of Ultimate Fact In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate her employment for failure to correct performance deficiencies pursuant to section 1012.34, and for "just cause"——specifically, for incompetency due to inefficiency, pursuant to section 1012.33 and rule 6A-5.056. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that Respondent committed the violations of section 1012.34 and 1012.33 and rule 6A-5.056 alleged in the Notice of Specific Charges. Failure to Correct Performance Deficiencies With respect to the charge that Respondent failed to correct performance deficiencies under section 1012.34, the evidence establishes that Respondent consistently engaged in poor and ineffective classroom instructional practices and that she repeatedly failed to correct these instructional practice deficiencies, notwithstanding the very substantial effort that Santana, reading coaches Rapp and Carrier, and Respondent's peers devoted to assisting her in improving her teaching performance. Specifically, the evidence showed that Respondent was consistently ineffective at addressing the individual learning needs, styles, and levels of her students; that she failed to employ appropriate instructional strategies and resources to develop lesson plans that include goals, objectives, and activities to address her students' diverse needs; that she did not address her students' academic needs through a variety of appropriate instructional strategies and techniques that engage them in the learning process; and that she was ineffective in creating and maintaining a classroom environment conducive to learning. The credible evidence does not show that Respondent received negative instructional practice evaluations in retaliation for having complained about the condition of her classroom in the 2011-2012 school year. Rather, the persuasive evidence——which includes corroborative testimony and an IPEGS observation by Baldessari and testimony by Carrier——shows that Respondent received negative performance evaluations because she failed to meet the IPEGS performance standards. However, the evidence failed to adequately address the student performance component of Respondent's performance evaluation pursuant to section 1012.34(3)(a)1.a. As discussed in greater detail below, section 1012.34(3)(a) places great emphasis on student performance on student learning growth assessments——specifically, the FCAT or school district assessments——in evaluating the performance of instructional personnel. Indeed, the statute mandates that at least 50 percent of a performance evaluation be based on data and indicators of student of student learning growth as assessed annually by the FCAT or by school district assessments. Only where (as here) less than three years of data for student learning growth assessments (i.e., FCAT or school district test scores) are available can the percentage of the teacher's performance evaluation based on student learning growth be reduced to less than 50 percent——and even then, it cannot be reduced to less than 40 percent. Here, Petitioner did not present any evidence regarding the relative weight that Santana assigned to Respondent's students' 2012 SAT median percentile scores for language arts and mathematics in evaluating Respondent under section 1012.34. Accordingly, it cannot be determined whether the required relative weight of at least 40 percent was given to the scores in evaluating Respondent, and, ultimately, in recommending that she be terminated. For this reason, Petitioner did not prove that Respondent failed to correct performance deficiencies pursuant to section 1012.34 such that her employment should be terminated. Incompetency Due to Inefficiency As previously noted above, the evidence showed that Respondent consistently and repeatedly was ineffective at addressing the individual learning needs, styles, and levels of her students.12/ She repeatedly failed to employ appropriate instructional strategies and resources to develop lesson plans that include goals, objectives, and activities to address her students' diverse needs. She failed to address her students' academic needs through employing a variety of appropriate instructional strategies and techniques to engage them in the learning process. She consistently used the same instructional materials and techniques to teach students of varying learning styles and levels and did not adequately pace the lessons. She also failed, on a consistent basis, to create and maintain a classroom environment conducive to learning. Her room was disorganized and cluttered, with misspelled words and grammatical errors written on the blackboard. She often was unprepared, so did not efficiently conduct the lessons. She did not establish consistent classroom procedures to address student behavioral issues and keep students on task. As such, Respondent consistently and repeatedly failed to effectively communicate with and relate to the students in her classroom to such an extent that the students were deprived of minimum educational experience. Due to her inefficiency, she was neither able nor fit to discharge her required duties as a teacher.13/ Moreover, the evidence establishes that Respondent failed to perform duties prescribed by law.14/ Section 1012.53(1) provides in pertinent part that the primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals and to meet state and local achievement requirements. The evidence establishes that due to Respondent's serious, repeated performance deficiencies previously described herein, she did not work diligently and faithfully to, and did not succeed in, helping her students meet or exceed the annual learning goals they were supposed to meet as prescribed by curriculum and lesson plans. Nor did she work diligently and faithfully to help them meet state and local achievement requirements. In fact, Respondent's students' 2012 SAT median percentile scores—— particularly for mathematics, which shows their achievement as much as 34.5 percentile points lower than all first graders in the Miami-Dade County Public School District——stand as strong evidence to this point.15/ The evidence also established that Respondent's teaching practices and classroom were so disorganized that the welfare of her students was diminished.16/ Her lack of organization in teaching caused confusion on the part of her students and instructional time often was wasted. Further, the disorganization and clutter in her classroom made it difficult to locate resources for the lessons. It was apparent at the final hearing that Respondent cares about her students and believes that she is a good teacher. However, Respondent's personal feelings and beliefs do not overcome the strong evidence presented in this case showing that she is not a competent teacher. Petitioner proved that, for the reasons set forth herein, Respondent is incompetent due to inefficiency, pursuant to rule 6A-5.056.17/ Accordingly, Petitioner proved that just cause exists under section 1012.33 to terminate Respondent's professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order terminating Respondent's professional services employment contract on the basis of just cause under section 1012.33, Florida Statutes. DONE AND ENTERED this 7th day of January, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 7th day of January, 2014.
The Issue The issue is whether the Education Practices Commission should suspend, revoke, or otherwise discipline Respondent’s certificate to teach school in the State of Florida.
Findings Of Fact Respondent is certified to teach in the area of Mentally Handicapped. Her Florida teaching certificate, number 637203, is valid through June 30, 1999. Respondent received a satisfactory evaluation of her teaching performance in Duval County for four years prior to the 1992-1993 school year. While teaching at C. G. Woodson Elementary School in Duval County, Respondent helped establish a mobility room for students in the Exceptional Student Education (ESE) program. She also played an important role in the creation of a parent center. She initiated the school’s participation in the foster grandparent program. During the 1992-1993 school year, the Duval County School District employed Respondent as a teacher in a self- contained Exceptional Student Education (ESE) classroom at C. G. Woodson Elementary School. Her students included pre- kindergarten, kindergarten, and first grade students who were designated as Trainable Mentally Handicapped (TMH). Respondent’s principal at C. G. Woodson Elementary School was Ms. Gloridan Norris. In 1992, Ms. Norris observed Respondent in classroom situations that caused her great concern. As a result, Ms. Norris and district ESE personnel began providing Respondent with on-going technical assistance. Respondent denied that she had any problems and did not cooperate with the efforts to alleviate Ms. Norris’s concerns. On or about March 11, 1993, Ms. Norris signed an annual evaluation of Respondent’s performance for the 1992-1993 school year. Competent persuasive evidence supports this evaluation which rated Respondent unsatisfactory in five of eight categories: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates knowledge of subject matter; (c) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (d) shows sensitivity to student needs by maintaining positive school environment; and (e) demonstrates a commitment to professional growth. Respondent’s overall evaluation was unsatisfactory. By letter dated May 10, 1993, the Duval County Superintendent of Schools advised Respondent that she would be discharged if she did not reach a satisfactory level of performance. It also informed her that she had the option of transferring to a new teaching position within the county. Respondent elected to transfer to another school. For the 1993-1994 school year, the Duval County School District assigned Respondent to teach at Mary McCloud Bethune Elementary School. Mr. William West was her principal. Respondent’s class for this school term consisted of fourth and fifth grade Educable Mentally Handicapped (EMH) students. Her class had twelve students, making it the smallest ESE class in the school. On or about August 2, 1993, Mr. West requested technical assistance for Respondent from the school district’s office of ESE Instructional Program Support. He specifically requested recommendations for Respondent in the area of classroom and behavior management. Pursuant to that request, the school district’s ESE staff visited Respondent’s classroom five times between September 8, 1993 and October 4, 1993. Dory Reese, Specialist in Intellectual Disabilities, prepared a report containing recommendations for Respondent’s immediate implementation. These recommendations included, but were not limited to these: (a) methods to gain control of the classroom so that instruction can begin; (b) how to follow through on any directions; (c) how to discipline; (d) how to be positive in giving directions; (e) how to stop a specific behavior; and (f) how to regain control which has been lost. In the fall of 1993, Mr. West requested assistance for Respondent from the school district’s office of Professional Development. As a result of that request, Sheryl Hahn visited in Respondent’s classroom. Ms. Hahn is certified to teach mentally retarded students. She prepared a written success plan which listed specific objectives and strategies for Respondent to improve her classroom teaching performance. Ms. Hahn’s plan included objectives and strategies in the following areas: (a) ability to plan and deliver instruction; (b) demonstrates knowledge of subject matter; (c) ability to use appropriate classroom management techniques; (d) maintaining accurate records; and (e) showing sensitivity to student needs by maintaining a positive school environment. Respondent and Ms. Hahn discussed the plan, including proposed completion dates for certain objectives, in a meeting on October 12, 1993. On October 26, 1993, Mr. West prepared Respondent’s mid-year evaluation for the 1993-1994 school year. He found that her performance was unsatisfactory in five of eight categories: demonstrates ability to plan and deliver instruction; demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (C) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. Competent persuasive evidence supports these ratings. On October 27, 1993, Respondent was absent from work. The assistant principal, Ms. Rosa Thomas, had to stay with Respondent’s class until a substitute arrived. Respondent had not prepared lesson plans for her class. Another teacher had to share her class work with Respondent’s students. On October 28, 1993, two of Respondent’s pupils left the classroom without permission. Respondent did not know where they were until they were located in the assistant principal’s office. On November 2, 1993, a student left Respondent’s class and went to the school office without permission. Mr. West sent Respondent a memorandum, reminding her that it was dangerous for the children to leave the classroom without adult supervision. He was concerned for the safety of the children. On November 5, 1993, a parent wrote a memorandum complaining that Respondent’s class was out of control. The parent requested that her child be transferred to another class. On November 8, 1993, Mr. West requested a psychiatric evaluation for Respondent. Mr. West based his request on concerns for the safety of Respondent’s students, concerns for Respondent’s health, and concerns about the school’s program. Respondent was unable to maintain control of her classroom. She appeared to be depressed and lethargic. During the week of November 12, 1993, one of Respondent’s pupils refused to get on the bus. The child walked home across a busy highway without supervision. Meanwhile, parents continued to call or visit Mr. West on a daily basis requesting that their child be removed from Respondent’s classroom. On or about November 19, 1993, Mr. West observed Respondent’s classroom performance. He saw students leaving the room without permission, standing on top of desks, taunting the teacher, and fighting. At the end of the day when Mr. West mentioned her pending psychiatric evaluation, Respondent became loud and emotional and stormed from the room. Mr. West wrote a letter to the Assistant Superintendent of Schools, expressing fear for the safety of the children. He requested that Respondent be removed from the classroom immediately. Late in November or early in December of 1993, Mr. West removed Respondent from her regular teaching position. He assigned her a new duty, one-on-one tutoring of ESE students. On or about December 15, 1993, Mr. West wrote another letter to the Assistant Superintendent of Schools. This letter expressed Mr. West’s fear regarding the safety of adults working with Respondent. During a meeting, Respondent became angry with support staff. She glared at the other adults, mumbled under her breath, and scribbled so hard on a paper that she tore it. Mr. West requested that Respondent be removed from the school setting. In January of 1994, Respondent returned to her regular classroom for the first time in several weeks. Mr. West observed her while she was teaching a lesson. He saw a student standing on top of a table and other students wrestling. The students appeared to ignore Respondent’s attempts to restore order. At times, Respondent appeared to ignore the chaos around her. After this observation, Mr. West told Respondent to return to her assigned duty of tutoring ESE students. Mr. West again requested that the school district remove Respondent from the school and place her in a non-teaching position. A memorandum dated January 27, 1994, advised Respondent that she would receive an unsatisfactory evaluation for the 1993-1994 school year. On March 10, 1994, Mr. West signed Respondent’s annual evaluation for the 1993-1994 school year. She received unsatisfactory ratings in six of eight categories: demonstrates ability to plan and deliver instruction; demonstrates knowledge of subject matter; (c)demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (d) shows sensitivity to student needs by maintaining positive school environment; (e) demonstrates abilities to evaluate instructional needs of students; and (f) shows evidence of professional characteristics. Competent persuasive evidence supports these ratings. On or about April 25, 1994, the Duval County School Board notified Respondent that it intended to terminate her employment. On or about July 11, 1994, Respondent and the Duval County School Board entered into an agreement in which Respondent agreed to resign her teaching position. Clear and convincing evidence indicates that Respondent is not competent to teach or to perform the duties of an employee in a public school system. She is not competent to teach in or operate a private school. Most importantly, Respondent is incapable of providing a safe environment for students in her classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission revoke Petitioner’s teaching certificate for one year from the date of the Final Order. DONE AND ENTERED this 2nd day of July, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1997. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Patricia Simmons 968 Southeast Browning Avenue Port St. Lucie, Florida 34983 Karen Barr Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent has violated section 1012.795(1)(c) and (j), Florida Statutes (2007), and Florida Administrative Code Rule 6B-1.006(3)(a) and (5)(e), as alleged in the Administrative Complaint, and if so, what penalties should be imposed?
Findings Of Fact Respondent is a teacher licensed by the State of Florida, and has been issued Florida Educator's Certificate 400054. Her certification covers the areas of history, physical education, social science, and middle grades, and is valid through June 30, 2014. Respondent was employed by the DCSD since 1981, and taught at several different schools during her employment. During the 2007-2008 school year, she was employed as a geography teacher at Jefferson Davis Middle School (Jefferson Davis). During the 2008-2009 school year, she taught geography at Southside Middle School (Southside). The allegations in this proceeding concern Respondent's behavior during and professional evaluations with respect to the 2007-2008 and 2008-2009 school years. During this period, the DCSD used the Teacher Assessment System (TAS) as the authorized method of evaluating teacher performance. The TAS measures teaching performance based on nine identified "competencies," which are as follows: Promotes student growth and performance; Evaluates instructional needs of students; Plans and delivers effective instruction; Shows knowledge of subject matter; Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; Shows sensitivity to student needs by maintaining a positive school environment; Communicates with parents; Pursues professional growth; and Demonstrates professional behaviors. A teacher's evaluation was based upon two formal classroom observations performed by a school administrator, which was usually the principal or an assistant principal. The teacher was afforded a pre-observation conference at which time the date for the observation was selected and the lesson plan to be taught during the observation was discussed. After the observation, there was a post-observation conference where the administrator's observations, which were recorded on a Teacher Assessment Instrument (TAI) were discussed. In addition to the formal evaluations, administrators also could use informal, unannounced observations of teachers in forming their opinions regarding performance. In the final evaluation conference with a teacher, a form entitled Evaluation of Professional Growth of a Teacher was used to document the instructor's final rating in each competency area and to record the teacher's overall performance rating for the school year. If a teacher demonstrated deficient performance in one or more competency areas, a "success plan" was developed for the teacher in an effort to assist the teacher in improving performance. The elements of the success plan were developed by a success team, typically composed of the teacher, school administrators, teachers with expertise in the relevant subject matter area, and resource teachers or "coaches." These elements, which were developed with input by the teacher being assisted, identified weaknesses by competency category, set out objectives to address these weaknesses, and provided timelines to meet the identified objectives. Addison Davis was the principal at Jefferson Davis from December 2005 through August 2009. He was the principal responsible for evaluating Respondent's performance during the 2007-2008 school year. On August 28, 2007, Mr. Davis conducted an informal "walk through" of Ms. Bowman's classroom. He observed that although the students had been instructed to read, 16 out of 23 of them did not have a book and were doing nothing. Ms. Bowman did nothing to provide these students with a book, and after 21, 31, and 37 minutes of class time respectively, Mr. Davis noted that no instruction had yet taken place. During the "mini- lesson," Ms. Bowman was asking questions and the students were yelling out unison responses, a practice which is not considered an effective teaching method. Mr. Davis's notes regarding the walk-through observation included the following observations: Instructor informed that "the quieter the class, the more hall passes were given out." Instructor asked questions and students were talking about unrelated topics . . . No evidence of learning taking place. No daily objectives were extended. Essential questions and vocabulary were not extended. Standards were not introduced. I asked the instructor for a lesson plan and one was not provide. [sic] Instructor said, "I don't have one." Student called Mrs. Bowman Ms. Bowwow. I had to address the class about gross respect. Mr. Davis observed no implementation of best practices and saw significant classroom management problems. Mr. Davis conducted a formal observation of Ms. Bowman on September 20, 2007, for which appropriate prior notice had been provided. The TAI completed for this observation indicated that all competencies were satisfactory with the exception of one area: plans and delivers effective instruction. Mr. Davis met with Ms. Bowman on September 26, 2007, to go over her TAI. He also spoke to her about calling him a dictator in the teacher's lounge at some point before the meeting. During this conversation, Mr. Davis spoke to Ms. Bowman about developing a success plan for her. Although Ms. Bowman signed her TAI, she informed Mr. Davis that she felt she was being targeted. A success plan meeting was scheduled for Wednesday, October 24, 3007. On October 22, 2007, Mr. Davis went to the cafeteria to remind Ms. Bowman, out of the hearing of students, of the meeting scheduled for later that week. Ms. Bowman stated that she did not have adequate time to arrange for a union representative, and while the two left the cafeteria, continued to express her feeling that she was being targeted. By the time Ms. Bowman and Mr. Davis reached the front office, she was yelling at Mr. Davis in the presence of students and staff, and accusing him of harassing her. When Mr. Davis advised her that she was acting unprofessionally, Ms. Bowman called him a liar. Approximately 30 minutes later, Mr. Davis called Ms. Bowman to his office to counsel her regarding her professional responsibilities. Ms. Bowman continued to claim she was being harassed, and Mr. Davis told her they needed to move forward. In response, Ms. Bowman told Mr. Davis she was not going to "kiss his ass" and walked out, still yelling at him. As a result of these incidents, Ms. Bowman received a written reprimand on October 23, 2007, considered step two discipline for the DCSD. Step one discipline had been imposed for a prior incident during the 2007-2008 school year. Ms. Bowman did not attend the success plan meeting scheduled for October 24, 2007. Despite her refusal to participate, Respondent was placed on a success plan which was implemented on or about November 3, 2007. Ms. Bowman made it clear that she would not participate in completing the success plan, despite repeated encouragement to do so. She refused to attend meetings and completed none of the identified objectives. A revised success plan dated January 18, 2011, was prepared, which reflected that none of the strategies were completed. Ms. Bowman refused to sign the revised success plan and continued to claim that she was being targeted. On December 10, 2007, Mr. Davis conducted an observation of Ms. Bowman, for which she had received notice November 27, 2007. As a result of this observation, Mr. Davis found that Ms. Bowman did not meet the competencies for promotes student growth and performance; plans and delivers effective instruction; and shows knowledge of subject matter. Mr. Davis was especially concerned that during his observation, two students were sleeping, and a third was wearing a hood on her head, which is prohibited. In addition, a significant portion of class time was focused on Sojourner Truth and the role she played in America's history. Teaching about Sojourner Truth, while relevant to geography in terms of cultural change, did not align with the pacing guide for teaching middle school geography at that point in the semester. On January 18, 2008, Ms. Bowman met with Mr. Davis regarding her December 10, 2007, observation, which they had discussed previously on January 2, 2008. A success team meeting was scheduled to occur after Ms. Bowman's meeting with Mr. Davis. During this initial meeting, Mr. Davis provided to Ms. Bowman a Notice of Potential Unsatisfactory Evaluation. Ms. Bowman became very upset during the meeting with Mr. Davis. She started yelling and could be heard by those staff members in the office area, calling Mr. Davis a liar and insisting that he was targeting her. Ms. Bowman refused to participate in the success plan meeting, continuing to insist that she was being targeted and harassed. Shortly after the meeting, Ms. Bowman returned to the office to say that she was leaving because she did not feel well. She called Mr. Davis a "son of a bitch" and said that "If I go down, then I am taking him with me." As a result of her behavior on January 18, 2008, on February 4, 2008, Ms. Bowman received another written reprimand as step three of the progressive discipline plan employed by the DCSD, and the Office of Professional Standards was notified. Ms. Bowman refused to sign the letter of reprimand.1/ An additional formal observation was conducted on January 30, 2008, by Tiffany Torrence, an assistant principal at Jefferson Davis. The TAI prepared for the observation indicated that competencies were not demonstrated for the following areas: promotes student growth and performance; evaluates instructional needs of students; plans and delivers effective instruction; and demonstrates professional behaviors. On March 3, 2008, Ms. Bowman received an unsatisfactory evaluation for the 2007-2008 school year. The evaluation reflected unsatisfactory ratings for the competencies of promoting student growth and performance; planning and delivering effective instruction; and demonstrating professional behaviors. She received a "needs improvement" for the competency of evaluating instructional needs of students. On May 7, 2008, John Williams, Director of Professional Standards for the DCSD, notified Ms. Bowman that, consistent with DCSD policy, in light of her unsatisfactory evaluation she had the right to elect to stay at Jefferson Davis or be reassigned to another school for the following school year. Failure to make an election by May 16, 2008, on the form provided would result in the automatic transfer to another school. Ms. Bowman did not submit the form and was transferred, consistent with DCSD policy, to Southside Middle School for the 2008-2009 school year. The principal for Southside during the 2008-2009 school year was LaTanya McNeal. In light of Ms. Bowman's unsatisfactory evaluation the previous year, and her own preliminary observations of Ms. Bowman, she initiated a professional development plan for Ms. Bowman on August 28, 2008. The plan identified four areas of focus: 1) to effectively create and maintain a standards-based bulletin board; 2) to effectively create and maintain a standards-based classroom environment; 3) to consistently develop plans based on student data; and 4) to effectively maintain student portfolios with work that meets the outlined standards according to the department checklist. The plan also provided certain goals and timelines for completing these goals, including the continued maintenance of daily lesson plans that reflect the workshop model. Ms. Bowman refused to sign the professional development plan. Ms. Bowman was informally observed on September 5, 2008, and September 24, 2008, with notice provided prior to the observations. Neither observation could be characterized as successful. The Teacher Observation Follow-up Form completed on September 25, 2008, included the following: -Teacher must have daily lesson plans and workshop model for social studies on her board. -Must have daily writing prompts -Portfolios (student) must be maintained consistently. -Per teacher has a problem with the support (amount) that is provided [Instructional coach, Department chair, Professional Development Facilitator and administrator]. On October 22, 2008, Ms. McNeal conducted a formal observation of Ms. Bowman, for which notice was provided. The TAI prepared as a result of the observation indicated in part that there was no evidence of student portfolios and that the students' folders were empty. There was no evidence of differentiated instruction or use of data to guide instruction; portfolios showed no evidence of work artifacts. The form also indicated that one student was sleeping, and Ms. Bowman yelled at him to wake up once someone came to retrieve him from class. In addition, the class was in disarray with Ms. Bowman engaging in shouting matches with the students. It was noted that Ms. Bowman had not initiated any parent/teacher conferences for academic or behavioral reasons. The TAI indicated deficiencies in the following competencies: promotes student growth and performance; evaluates instructional needs of students; plans and delivers effective instruction; utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; shows sensitivity to student needs by maintaining positive school environment; communicates with parents; and demonstrates professional behaviors. Ms. Bowman did not accept the TAI, and wrote on it that "principal did not tell the truth and was unfair and misleading." On October 28, 2008, Ms. Bowman was provided a Notice of Potential Unsatisfactory Evaluation, with competencies A, B, C, E, F, G and I listed as needing improvement. The Notice notified her that a success plan would be developed with her input and collaboration, with a conference to be held on November 3, 2008. Ms. Bowman refused to sign the Notice. On November 3, 2008, the success team met with Ms. Bowman in attendance, and a success plan was developed. The success plan included the concerns outlined in the professional development plan and focused on data-driven instruction, use of student portfolios, assessment of student needs, measurement and explanation of student progress, and use of the CHAMPS program, which is a classroom management program used throughout DCSD. Consistent with DCSD policy, a success team was created that included Principal McNeal, other administrators, Ms. Bowman, a reading coach, and an instructional coach. In contrast to the experience at Jefferson Davis, Ms. Bowman at least attended the success plan meetings. Consistent with the objectives outlined in the success plan, Ms. Bowman was provided training and technical support for Compass Odyssey and FCAT Explorer, which are computer programs used to assess student needs and to track student progress. However, Ms. Bowman did not use the programs in her teaching and rejected the concept of individualized instruction based on student needs. She did not implement a portfolio system and declined to observe another teacher conducting a parent-teacher conference. As of January 30, 2009, Ms. Bowman had not submitted a five-day lesson plan, which is required of all teachers, despite that fact that the school year was over half-way completed. While Ms. Bowman claimed that she knew how to conduct parent-teacher conferences, Ms. McNeal had received numerous calls from parents upset about the grades received in Ms. Bowman's classes, and the lack of contact with Ms. Bowman. Ms. Bowman continued to complain that she was being singled out and that the success plan was merely a pretext to justify her termination. Although the success plan was deemed "completed" on February 25, 2009, Ms. Bowman did not incorporate the concepts identified in the success plan into her classroom instruction. To the contrary, it appears that Ms. Bowman's instructional methods did not change at all. Ms. McNeal conducted another formal observation of Ms. Bowman on March 11, 2009, in the afternoon. FCAT testing had taken place earlier in the day and Ms. Bowman thought it unfair to be observed on that day. However, she designated the date for observation during her pre-observation conference on March 6, 2011. The TAI indicates that competencies were not satisfactory for the following competencies: promotes student growth and performance; evaluates instructional needs of students; utilizes appropriate classroom management techniques; shows sensitivity to student needs by maintaining positive school environment; and communicates with parents. Ms. McNeal noted on the TAI that a recent grade printout showed high levels of D's and F's for Ms. Bowman's students. For example, the printout dated March 5, 2009, indicated that out of 16 students in her first period class, five students had F's and two had D's. Of the 24 students in her second period class, 13 were failing and two had D's. Ms. Bowman was offered significant assistance to improve her performance. Ms. Bowman attended training opportunities on 14 school days where substitutes were arranged to handle her teaching duties. She was also offered the assistance of instructional and reading coaches, which she consistently rejected. On March 13, 2009, Ms. McNeal issued an Evaluation of Professional Growth of Teacher for Ms. Bowman. The overall evaluation resulted in an unsatisfactory rating, with unsatisfactory ratings in the following competencies: promotes student growth and performance; evaluates instructional needs of students; utilizes appropriate classroom management; shows sensitivity to students by maintaining positive school environment; and communicates with parents. Ms. Bowman was rated as needing improvement in the areas of planning and delivering effective instruction and demonstrating professional behaviors. Ms. Bowman signed the evaluation but indicated that she did not accept it, noting that her observation was conducted on a day of FCAT testing. Ms. Bowman attacked the credibility of the principals at both Jefferson Davis and Southside, stating that they were targeting her and retaliating against her. However, no credible evidence was presented to show any basis for Mr. Davis or Ms. McNeal to retaliate against her. Moreover, as noted in the Recommended Order in Duval County School Board v. Bowman, Case No. 09-3004 (Fla. DOAH Jan. 12, 2010; DCSD Mar. 15, 2010), Respondent's work history indicates a pattern of blaming others for poor evaluations. On May 5, 2009, Respondent was notified by the Superintendant of Schools for DCSD, that based upon her two successive unsatisfactory evaluations, he was recommending that her employment be terminated. Ms. Bowman requested a hearing pursuant to chapter 120, and the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge. After completion of a hearing, on January 12, 2010, a Recommended Order was issued recommending termination of Ms. Bowman's employment in Duval County School Board v. Bowman, Case No. 09-3004. A Final Order adopting the Recommended Order and terminating Ms. Bowman's employment was entered by the Duval County School Board on March 12, 2010.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent has violated the section 1012.795(1)(c) and (j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a) and (5)(e), and revoking her educator's certificate. DONE AND ENTERED this 19th day of January, 2012, 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 19th day of January, 2012.
The Issue The issue in this case is whether Petitioner, Monroe County School Board, has “just cause” to terminate the employment of Respondent, Maryeugene E. Dupper, as a teacher for Petitioner.
Findings Of Fact The Parties. Petitioner, Monroe County School Board (hereinafter referred to as the “School Board”), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Monroe County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Respondent, Maryeugene E. Dupper, has been a classroom teacher with the School Board since August 2000. She began her employment as a substitute teacher and was subsequently employed as a full-time teacher at Poinciana Elementary School (hereinafter referred to as “Poinciana”), where she worked with profoundly handicapped students. She remained at Poinciana through November 2006. Throughout her employment at Poinciana, Ms. Dupper received good performance evaluations, although they did decline over time. On November 17, 2006, Ms. Dupper transferred to Gerald Adams Elementary School (hereinafter referred to as “Gerald Adams”), where she taught a Pre-K Exceptional Student Education or ESE class for the first time. At the times pertinent to this proceeding, Ms. Dupper was employed as a teacher pursuant to a professional services contract. 2006-2007 School Year. From the beginning of her employment at Gerald Adams, Ms. Dupper evidenced difficulty implementing the curriculum in a meaningful way. In particular, Ann Herrin, Principal at Gerald Adams, whose testimony has been credited, found that Ms. Dupper was having a difficult time establishing the scope and sequence of lessons and effective classroom management techniques. Among the deficiencies Ms. Herrin found with Ms. Dupper’s performance was the lack of progress notes for her students. Ms. Dupper failed to keep any notes indicating that she had performed any formal evaluation of her students. When Ms. Herrin asked Ms. Dupper how she could tell whether her curriculum was successfully reaching each student, Ms. Dupper simply replied that “I am a teacher and I just know.” After conducting two formal observations and a number of informal observations of Ms. Dupper, Ms. Herrin, in her 2006- 2007 annual teacher evaluation concluded that Ms. Dupper “Needs Improvement” in Management of Student Conduct, Instruction Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Herring used a Teacher Annual Assessment Plan Comprehensive Assessment Form for this evaluation. Overall, Ms. Herrin rated Ms. Dupper as “Needs Improvement” noting that “Curriculum content is lacking – making the learning environment unacceptable and unmanageable.” Subsequent to Ms. Herrin’s evaluation of Ms. Dupper, Ms. Herrin issued a Professional Development Plan for Ms. Dupper dated May 30, 2007. Ms. Dupper, who had been provided assistance throughout the school year by Gerald Adams administrative staff, was offered guidance in the Professional Development Plan intended to improve her performance as a teacher. That guidance is accurately described in paragraph 9 of the School Board’s Proposed Recommended Order. At the beginning of the 2007-2008 school year, the School Board instituted a new curriculum for use by Pre-K teachers. That curriculum, the Galileo Curriculum (hereinafter referred to as “Galileo”), is a computer-based program which includes lessons plans and benchmarks and goals for teachers to use in assessing student performance. Although Galileo includes a means for teachers to keep track of student progress, Galileo is not a student evaluation instrument intended for use in “testing” student progress. 2007-2008 School Year. During the 2007-2008 school year, Ms. Dupper was observed on October 11, November 8, and December 18, 2007, and on March 20 and 26, and May 6 and 22, 2008. Despite efforts to provide Ms. Dupper with professional assistance and making several changes in the teacher’s aide assigned to assist her, Ms. Dupper’s performance remained inadequate. Ms. Dupper was provided with assistance by teachers at Gerald Adams, including a “mentor," and by the head of the Exceptional Student Education department and an Exceptional Student Education Program Specialist. Ms. Dupper was observed on one occasion by Ms. Herrin when every student in Ms. Dupper’s “learning center” left the area while she continued to “teach.” One student stood on a table dancing, uncorrected by Ms. Dupper. On two occasions, a student left Ms. Dupper’s classroom altogether and were taken back to Ms. Dupper’s classroom before she realized they were gone. On nine different occasions during the 2007-2008 school year, Ms. Herrin requested a discipline plan from Ms. Dupper. No plan was ever provided. Ms. Dupper’s use of Galileo was minimal during the 2007-2008 school year. The system contained a checklist, by domain or skill, which was intended for use by a teacher in determining whether each student was learning the listed skills. Ms. Dupper rarely used the system, however, only logging into the Galileo system 19 times. Nine of those times were on the same day and four were on another day. Other Pre-K teachers utilized Galileo an average of 100 times more than Ms. Dupper. Ms. Herrin’s 2007-2008 annual evaluation of Ms. Dupper, dated April 4, 2008, found that her performance had declined and was “Unsatisfactory.” Ms. Herrin found Ms. Dupper “Unsatisfactory” in Management of Student conduct, Instruction, Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Dupper’s performance in Professional Responsibilities also declined due to her failure to complete Individual Education Plans on time, incomplete and inaccurate progress notes, and her failure to follow suggestions for improvement. The 90-Day Probation Period. As a result of her continuing decline in performance, Ms. Dupper was informed on April 9, 2008, that she was being placed on a 90-day probation period pursuant to Section 1012.34, Florida Statutes. She was informed that her deficiencies included the inability to manage student conduct, lack of lesson planning, inadequate knowledge of subject matter, lack of student progress evaluation, and inadequate professional responsibility. Ms. Dupper was given suggestions for how to improve her deficiencies over the summer break, suggestions which Ms. Dupper did not follow. While on probation, Ms. Dupper was also offered an opportunity to transfer to another school, an offer which was not accepted. On June 6, 2008, at the request of Ms. Dupper’s union representative, a second annual evaluation was performed by Ms. Herrin. While Ms. Herrin found some improvement, she found that, overall, Ms. Dupper’s performance was “Unsatisfactory.” Ms. Dupper was on probation during the 2007-2008 school year a total of 62 days, excluding holidays and “professional days.” During the summer months between the 2007-2008 and 2008-2009 school years, Ms. Dupper, who was not teaching, failed to follow any of Ms. Herrin’s suggestions for personal improvement opportunities. The first day of school for the 2008-2009 school year and the commencement of the 90-day probation period was August 11, 2008. Ms. Herring formally observed Ms. Dupper during the third week of September 2008, and on October 2, 2008. Assistant Principal Willis observed Ms. Dupper on October 8, 2008. Ms. Dupper’s performance and use of Galileo continued to be unsatisfactory, despite continuing efforts of the administration staff to assist her, as more particularly and accurately described in paragraphs 30 through and including 35 of Petitioner’s Proposed Recommended Order. Additionally, Ms. Dupper continued to fail to prevent her very young students from leaving the classroom without her knowledge. Excluding non-school days, Ms. Dupper was given more than 120 days from the commencement of her probation period until her probation period was considered ended in October 2008. By the middle of October 2008, Ms. Herrin concluded that Ms. Dupper had not evidenced satisfactory improvement in her teaching skills. Ms. Herrin’s conclusions concerning Ms. Dupper’s unsatisfactory performance as a teacher, which were not contradicted, are credited. The Decision to Terminate Ms. Dupper’s Employment By letter dated October 30, 2008, Ms. Herrin recommended to Randy Acevedo, Superintendent of the Monroe County School District, that Mr. Acevedo review documentation concerning Ms. Dupper’s 90-day probation period and make a recommendation pursuant to Section 1012.33, Florida Statutes, concerning her continued employment. Ms. Herrin provided Mr. Acevedo with the following information for his review: Attached please find a copy of the professional development plan and this year’s observations conducted by Assistant Principal, Grace Willis and me. The remaining documentation for the 2007 and 2008 school years have been submitted to personnel. I have also attached the follow up documentation, the review of the 90-Day plan and the observations that outline the deficiencies that still remain. This teacher’s performance remains unsatisfactory. Petitioner’s Exhibit 7. Missing from the information provided for Mr. Acevedo’s consideration was any information concerning student performance assessed annually by state or local assessment. By letter dated November 14, 2008, Mr. Acevedo informed Ms. Dupper that he was going to recommend to the School Board at its December 16, 2008, meeting that her employment as a teacher be terminated. By letter dated November 18, 2008, Ms. Dupper requested an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge her anticipated termination of employment. The School Board accepted the Superintendent’s recommendation at its December 16, 2008, meeting, suspending Ms. Dupper without pay, pending a final determination of whether her employment should be terminated. Student Performance Assessment. The Florida legislature has specified in Section 1008.22, Florida Statutes, a “Student assessment program for public schools.” This assessment program is to be considered in evaluating student performance as part of a teacher’s evaluation. The assessment program, however, does not apply to Pre-K students. “FLICKRS” is a state assessment tool intended for use in evaluating Kindergarten students. FLICKRS allows schools to evaluate whether a Kindergarten student is actually ready for Kindergarten-level work. FLICKRS is not utilized by the School Board to evaluate the progress of Pre-K students. The School Board has not developed any means of annually assessing the performance of Pre-K students. As a consequence, the decision to terminate Ms. Dupper’s employment by the School Board was not based upon any annual assessment of her students’ performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order: (a) dismissing the charges of the Administrative Complaint; (b) providing that Ms. Dupper be immediately reinstated to the position from which she was terminated; and (c) awarding Ms. Dupper back salary, plus benefits, to the extent benefits accrued during her suspension, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of July, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 22nd day of July, 2009. COPIES FURNISHED: Scott Clinton Black, Esquire Vernis and Bowling of the Florida Keys, P.A. 81990 Overseas Highway, Third Floor Islamorada, Florida 33036 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Acevedo, Superintendent Monroe County School Board 241 Trumbo Road Key West, Florida 33040-6684 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether it is appropriate for Petitioner to discipline Respondent's Florida educator's certificate for acts alleged in Petitioner's Administrative Complaint dated November 19, 2009.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in Florida. Respondent holds Florida Professional Educator's Certificate No. 931173, covering the area of Elementary Education, which is valid through June 30, 2013. At the time of the incident alleged in the Administrative Complaint, she was employed at Poinciana Elementary School, in Osceola County, Florida, where she had taught for six years. Respondent has taught for approximately ten years. She started teaching at Poinciana Elementary School in 2002. Dr. Wayne Kennedy (Dr. Kennedy), the principal at Poinciana Elementary School, gave Respondent excellent evaluations. He reported that Respondent did a very good job of teaching students and that the students did well on academic tests. She had good classroom control and management. She was stern and authoritarian with students, she expected them to do what they could, and got good results. He did not recall any complaints during his six years of supervision of Respondent. Dr. Kennedy retired during the 2006-2007 school year. He was replaced by Ms. Sherri Turchi (Ms. Turchi). Ms. Turchi gave Respondent the lowest performance evaluation she had while teaching at Poinciana Elementary School. Ms. Turchi assigned Respondent to teach a fourth-grade class even though Respondent had taught first and second grade and had requested that assignment. Recognizing that Ms. Turchi harbored personal animosity for her, Respondent requested a transfer after the 2007-2008 school year. Her request for transfer was denied. Respondent began teaching the fourth grade in August 2008. In September 2008, Ms. Turchi reassigned Respondent to teaching a Mathematics Block. Unlike a normal elementary school classroom situation, students are rotated through block classes. From September 10, 2008, through November 5, 2008, the date of the alleged incident, Respondent only saw the students involved approximately six times. The national election wherein President Barack Obama was elected occurred on November 4, 2008. As a result of the election, students, not unlike other Americans, were excited. Recognizing this as an educational opportunity, a discussion about the election occurred in Respondent's classroom. Responding to questions and statements from students, Respondent recalls advising them that she voted for John McCain, whom she respected for his character and integrity; that she was neither a Democrat nor Republican; and that voting should not be made based on a candidate's physical appearance. Respondent specifically denied having made statements or used the language referred to in the Administrative Complaint. Respondent's testimony regarding the essential facts and tenor of the classroom discussion about the presidential election is credible. After leaving Respondent's classroom, several students authored statements wherein they reported elements of the discussion that had occurred in Respondent's classroom. It is suggested that the students did this spontaneously or that the exercise was an effort to allow the students to express concern regarding their confusion about the political discussion. The statements were done under the supervision of a second teacher and were the genesis of the allegations in the Administrative Complaint. Petitioner's only witnesses were three students who had participated in the post-election discussion and had authored the referenced statements. Their testimony reflects little specific recollection of the "inappropriate and embarrassing comments" referred to in the Administrative Complaint. Not surprisingly, given their age, lack of recollection, and the passage of time, their testimony and their statements are not accorded significant credibility by the undersigned. On November 6, 2008, Respondent was removed from the classroom and reassigned to the Administration Building. She essentially had no responsibility, but her employment continued. On March 4, 2009, Respondent met with Osceola County School Board officials. She requested transfer to another school where she knew there was an opening for a second-grade teacher. She was advised that transfer was not an option and that she was to return to Poinciana Elementary School. Respondent resigned from her teaching position the following day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Valerie McCoy Schubert, is not guilty of the violations alleged in the Administrative Complaint and that no disciplinary action be taken. DONE AND ENTERED this 8th day of December, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2010.
Findings Of Fact At all times material hereto, Respondent held active Teaching Certificate 485203 with certification in Political Science and History. She is a hard worker, who, when orphaned, put herself through school, achieving a Master's Degree in Social Justice from Lewis University. Respondent was employed by Petitioner School Board as a social studies teacher at Miami Central Senior High School for the 1981-82, 1982-83, and 1983- 84 school years. During Respondent's first year with the Dade County school system, 1981-82, she was formally observed by her principal, Mr. Hal Guinyard, and other administrators. Respondent had problems with discipline of tardy students, absenteeism, classroom management and noise level control in the classroom and with devising and carrying through variations of instruction. On Respondent's annual evaluation for 1981-82, Respondent was recommended for employment but was found lacking in the area of classroom management. The specific observations leading up to this evaluation were that: Several students entered and left the room at will, other students remained in the halls during class time, some students in the classroom disturbed others in Respondent's class and even nearby classes with irrelevant and extraneous discussions and excess noise. There was excess noise from the late arrivals and those in the halls, too. The Respondent rolled on copy work from the chalkboard or text book with minimal student conversational feedback. Mr. Guinyard suggested to Respondent that she minimize busy work, create an orderly classroom environment, and explore alternative instructional techniques. On October 26, 1982, Respondent was formally observed in the classroom by Assistant Principal William Matlack, using the Teacher Assessment and Development System (TADS) of objective analysis. Mr. Matlack rated Respondent as unsatisfactory in the area of techniques of instruction. Excessive time was used by Respondent in preparing her students to take a test. Mr. Matlack prescribed help for Respondent in the area of techniques of instruction by assigning Respondent to observe three effective teachers and list four teacher activities, three student activities, and to analyze the time spent in organizing the class and in instructional activities. He also suggested that she read the TADS chapter on acceptable classroom procedures and teaching techniques and attached 33 pages of reading material to her evaluation, giving suggestions for classroom management, effective planning, techniques of instruction, and techniques of student-teacher relationships. He further advised Respondent of an in-service course in techniques of instruction. While Mr. Matlack did not rate Respondent as unacceptable in classroom management, he found that she still did not control her class for all the reasons previously noted by Mr. Guinyard. Rather than rate her as unacceptable in this area, he directed a memorandum dated October 29, 1982, to Respondent's attention indicating problem areas that could lead to further discipline problems if uncorrected. One of the problems was that Respondent was selling doughnuts for the athletic department between classes, and Mr. Matlack made her aware of the fact that students would be tempted to eat in other teachers' classes and that this was against the school rules. Respondent also was admonished concerning the security danger existing in her leaving money and keys lying about. On February 28, 1983, Respondent was again formally observed in the classroom by Mr. Matlack using the TADS and was found to be deficient in the areas of knowledge of subject matter, techniques of instruction, assessment techniques, and teacher-student relationships. Respondent was rated unsatisfactory in knowledge of the subject matter because the topics were not covered thoroughly and there was too much digression. There were 11 topics discussed and few were related to each other. Some of the areas were irrelevant, e.g., the importance of obtaining a good lawyer if one is going to win a lawsuit, how to obtain a house in Chicago, and the five black Presidents in the United States. Only 6 minutes were spent on how a bill becomes a law. Only 25 minutes were spent on the prescribed curriculum topics of cabinet duties, income tax, social security, Veterans' Administration, Federal Housing Authority, Health and Rehabilitative Services, and the Equal Rights Amendment, and the irrelevant topics already mentioned. Techniques of instruction was rated unacceptable because Respondent presented the material in a lecture form. The assignment on the board was very similar in technique (copy work for listing and defining terms, outlining a chapter) to what was used during the October 1982 observation; content was, however, different. The students were not ready for the assignment. There appeared to be no scope and sequence to the lesson. The lesson was very disjointed. The students were not involved when questions were asked, and their response was minimal. No effort was made to identify those students not participating or off task nor to involve all of them in the lesson. One or two students carried the class. Respondent did not appear to be effectively using the suggestions made by Mr. Matlack during his prior observation. Mr. Matlack explained to Respondent the need to create inspiration, create interesting presentations, move around the classroom utilizing various techniques and media, direct questions for the purpose of involving students, and for motivational use of questions geared toward individual abilities of respective students. He recommended Respondent re-read the TADS booklet that he had prescribed before. Respondent was rated "improved" in keeping grades for a variety of types of assignments in her grade book, but she still was not making informal assessments of her students' learning. Respondent was rated unacceptable in teacher-student relationships because she was not involving the students in instruction. The students appeared to do as they pleased. The classroom still did not present a neat and orderly atmosphere. The students seemed surprised at Respondent's attempt to enforce rules and regulations. This indicated to Mr. Matlack that the control was for his benefit, being implemented only for the instant period of observation. At the conclusion of the 1982-83 school year, Mr. Guinyard recommended Respondent for continued employment, but rated her overall unacceptable. He found her unacceptable for the year in knowledge of subject matter and techniques of instruction. She would continue on prescription (prescribed remediation efforts). Mr. Guinyard testified that he gave Respondent an extra year on prescription and brought in more help so that she might yet improve. During the 1982-83 school year, Mr. Guinyard recommended that Respondent observe other teachers and that she contact Mr. Hanson for help, which she did. Mr. Hanson is the Social Studies Supervisor for Dade County Schools. Mrs. Felicia Accornero (hereinafter Mrs. Mendez), is Assistant Principal for Curriculum (APC). She is not a trained social studies teacher but is certified to teach biology, chemistry, and gifted children. She is certified to work as an administrator, supervisor, or guidance counselor. Additionally, Mrs. Mendez discussed social studies concepts with other social studies teachers in an effort to be of more assistance to Respondent. On October 18, 1983, Respondent was officially observed in the classroom by Mrs. Mendez. Using the TADS analysis system, Mrs. Mendez rated Respondent deficient in the areas of knowledge of subject matter, classroom management, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in knowledge of subject matter because there were substantial errors in her presentation: incorrect spellings, incorrectly defined terminology, and unnecessary use of lay terms rather than formal terms. Mrs. Mendez' perception was that neither the students nor she, personally, understood the lesson as represented by Respondent. Mrs. Mendez recommended that Respondent work with her. Mrs. Mendez also prescribed particular pages from the TADS prescription manual, which included a detailed subject matter inventory. This was a checklist so that Respondent could understand the different areas where she could become knowledgeable so that her subject matter would be more accurate and more relevant to the students. Mrs. Mendez discussed subject matter with Respondent and discussed one lesson a week with Respondent prior to its presentation. At this time, Mrs. Mendez also rated Respondent unacceptable in classroom management because there were too many delays in the class due to the same deficiencies observed previously by Messrs. Guinyard and Matlack, specifically repetitive tardies, disruption by tardies noisy off-task irrelevant extraneous discussions among students during teaching, 50% of the time spent in opening and closing class and other non-instructional activities, lack of discipline, disorganized classroom and disorganized lesson presentation by Respondent. The lesson plan which was in Respondent's 1982-83 lesson plan book for October 18, 1983, was not the one which Mrs. Mendez observed in the classroom. She was give a separate lesson plan. Mrs. Mendez prescribed a TADS chapter on structuring classroom time so that the teacher moves from one activity to another without delay. Mrs. Mendez suggested that Respondent work with both her and the department chairman, Mrs. Consuelo Pino, to improve Respondent's classroom management. Mrs. Mendez rated Respondent unacceptable in techniques of instruction because Respondent was not following a sequence, was not clarifying directions and explanations when necessary, did not give students background information that was necessary for them to understand the topic, and did not perceive when her students did not understand the lesson. Mrs. Mendez prescribed reading a section from the TADS chapter on sequencing lessons and also prescribed help from herself and Mrs. Pino. Mrs. Mendez worked with Respondent to help her place her lesson plans in an understandable sequence. At least weekly for the next ten weeks, Mrs. Mendez helped Respondent. Mrs. Mendez provided Respondent with a book on questioning techniques, helped Respondent organize her room, showed her how to position her desk so that she would have a better view of the students, explained how a seating chart would help her keep accurate attendance quickly, explained how to utilize student folders so that materials would be easily accessible and so that the classroom and instructional techniques and procedures would accordingly be better organized. The prescription deadline was extended to accommodate Respondent. On November 8, 1983, a conference for the record was held with Mr. Mathew V. Lawrence, Mrs. Mendez, and a field representative of United Teachers of Dade. Mr. Lawrence had been Assistant Principal the first two years Respondent taught at Miami Central Senior High and became Principal there for the 1983-84 school year. The purpose of the conference was to discuss the October 18, 1983 observation and the continuing deficiencies. The prescriptions were discussed. The ramifications of continued deficiency were discussed. Respondent's responsibility for basic skills such as reading and spelling was discussed. Respondent was reminded that she was responsible not only for her subject matter, (history, social studies, political science) but for students' basic skills (reading, writing, spelling, grammar). 24.. On November 12, 1983, Mrs. Mendez again formally observed Respondent in the classroom using the TADS analysis technique. Respondent was aware that she would be observed that day. Respondent showed some improvement over the prior observation in that she presented some accurate information for most of the period; however, Respondent was rated unacceptable in preparation and planning, knowledge of subject matter, and techniques of instruction. Mrs. Mendez rated Respondent unacceptable in preparation and planning because her objective was too simple and she did not list activities and assessment techniques, as required. Thereafter, Mrs. Mendez worked with Respondent on writing lesson plans and helped her write lesson plans. Mrs. Mendez found Respondent unsatisfactory in knowledge of the subject matter because Respondent made inaccurate statements, used incorrect grammar, and gave opinions rather than presenting both sides of an issue to students. Mrs. Pino made the same observation. During some parts of the lesson, it appeared that Respondent did not know what she was talking about. While the students appeared to understand most of the lesson, at times they did not. Mrs. Mendez also concluded that Respondent was not adhering to a structured plan but for this formal observation for the last formal observation Respondent had prepared lesson plans for observation days separate and apart from her normal procedure/plan for non-observation days. To improve Respondent's knowledge of subject matter, Mrs. Mendez recommended that Respondent review and study the textbook chapters prior to teaching the lesson because it did not appear that Respondent was doing this. Mrs. Mendez also gave Respondent the opportunity to prepare lessons and to explain them to Mrs. Mendez ahead of the time Respondent would present the material to the class so that Mrs. Mendez could monitor whether or not the information would be clearly presented to the class. Mrs. Mendez rated Respondent unacceptable in techniques of instruction upon much the same grounds as she used to substantiate the unacceptable rating for the categories of preparation and planning and knowledge of the subject matter, all essentially relating back to inadequacy of Respondent's lesson plans, or that the lesson plans were created solely for observation or to satisfy a prescription and were not for actual use. Petitioner's Exhibit 12 does not reflect a specific written prescription in this category, but Mrs. Mendez' oral testimony indicated further emphasis and helpful work on lesson plans was initiated. Respondent was next formally observed by Mr. Matlack on January 19, 1984. Respondent showed improvement this time but Mr. Matlack noted that Respondent needed to record her students' grades in her grade book more promptly as she received them. He also rated her unacceptable in classroom management primarily because of continued disruptions from tardy arrivals. Mr. Matlack directed Respondent to establish rules and regulations for students about coming into the class on time, bringing the needed materials, staying until the period ends, and prohibiting visitors into the classroom. He gave her specific suggestions on how to make these improvements and provided her with a memorandum outlining the deficiencies and prescribed help. Respondent's lesson plan for January 19, 1984, in Respondent's 1983-84 lesson plan book was only partially covered in the period observed that day by Mr. Matlack. On February 8, 1984, Mr. Lawrence rated Respondent unacceptable in classroom management on her midyear annual evaluation for 1983-84. On February 10, 1984, Mr. Lawrence held a second conference for the record with Respondent to discuss her performance assessments to date and his recommendation that she not receive a fourth year of annual contract. He also advised her that if she cleared her deficiencies, he would rescind his recommendation and would recommend a continuing contract. Respondent agreed to a fourth year annual contract. On March 13, 1984, Mr. Lawrence made his first official classroom observation of Respondent according to the TADS and found her to be very deficient. He felt that no teaching and learning were taking place. He observed her to be deficient in the areas of knowledge of subject matter, classroom management, techniques of instruction, and assessment techniques. Mrs. Lawrence found Respondent unsatisfactory in knowledge of subject matter because the definitions she gave for vocabulary words were not accurate and not appropriate. The students did not seem to understand the class work. Respondent was not gearing the lesson for all of her students. The lesson plan in Respondent's 1983-84 plan book for March 13, 1984, was not the plan Mr. Lawrence observed being implemented that date. Mr. lawrence prescribed for Respondent to prepare lesson plans for five days that detailed the sequencing of concepts and how each concept would be explained and implemented. Respondent was to include a minimum of five ideas and concepts and give the cognitive levels covered in each area. Mrs. Mendez and Mrs. Pino were recommended as resources. Respondent was rated unacceptable in classroom management because students were coming to the room late and being admitted without any evidence they had been detained elsewhere and without reprimand or punishment by Respondent. There was no evidence the students had any knowledge of the correct procedure. Step by step instructions for correcting her classroom management in this area were given to Respondent by Mr. Lawrence. Mr. Tom Shaw later helped her in this area. Mr. Lawrence rated Respondent unacceptable in techniques of instruction because the only two methods she used during the class period were writing definitions for 10 minutes and answering questions from the end of the chapter in the textbook for 45 minutes. The questions at the end of the chapter were unrelated to the vocabulary work. Respondent gave no introduction to the material. There was no evidence of the students understanding the materials, and no opening or closure to the lesson. In order to aid Respondent to improve her techniques of instruction, Mr. Lawrence recommended that Respondent develop a list of at least 10 teaching techniques or suitable teaching methods. He directed her to utilize a minimum of two methods permitting students to actively participate. He directed her to prepare lesson plans for a week that demonstrated these methods and how the students would be involved. He suggested that Mrs. Mendez and Mrs. Pino be used as resources. Respondent was rated unacceptable in assessment techniques based on four student folders selected at random, each of which contained only five test cares and one or two additional sheets of work. The work in the student folders was not representative of what should have been there so late in the school year and therefore students' work was not accurately documented and could not be properly assessed for grading the child. The help that Mr. Lawrence prescribed for Respondent was to prepare two written assessment items per week for three weeks. Each test was to contain a variety of at least three types of questions. He wanted other corrected items such as homework and class work to be contemporaneously placed in student folders. He assigned Mrs. Mendez and Mrs. Pino to help Respondent. Pursuant to Mr. Lawrence's March 13, 1984 prescription, Mrs. Mendez explained to Respondent in a memorandum what was required in the student folders. Subsequently, when Mrs. Mendez reviewed the student folders, she found a student paper consisting of one incomplete sentence fragment graded "A". The student's grammar was not graded (p 14). This one example was clearly contrary to the criteria established by Mrs. Mendez and contrary to the criteria established by Mrs. Mendez and contrary to the instructions for the assignment outlined by Respondent but it still had been graded "excellent." At hearing, Respondent denied that she gave the paper an "A" and asserted that she would require from this particular student two examples the next day. On April 24, 1984, Respondent was formally observed simultaneously by two administrators (Mrs. Mendez and Paul Hanson) and was found by both administrators to be unsatisfactory in the areas of preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. Respondent had lesson plans and objectives based on the county curriculum, but was rated unacceptable in preparation and planning because her plans were not effectively implemented. She did not fill the allocated class time although only about 10% of the planned material was covered. One of the nine listed topics was "Communism." Section 233.064, Florida Statutes, spells out the content and mandates 30 hours for curriculum in "Americanism vs. Communism." On eleven different occasions, Mr. Hanson noted students were totally off task, disruptive and loud, and discussing topics that were not relevant to the lesson on Communism. The students were talking in little groups and in Mr. Hanson's opinion nothing academic was learned by the students during the period and consequently the students might thereby fall short of the statutorily required 30 hours. As a means to help Respondent, Mrs. Mendez suggested that Respondent prepare lesson plans for one week and check with the Assistant Principal who would observe the class to see if the plans were implemented. She recommended that Respondent seek help from both herself and Mrs. Pino. Respondent was rated unsatisfactory in knowledge of subject matter because the information that she provided concerning Communism was not accurate. There were a number of errors made by Respondent during the course of the lesson. Mr. Hanson prescribed help for Respondent by working with Dan Jones, Social Studies Specialist, during the week of May 11, 1984. Respondent was rated unacceptable in classroom management because of the numerous disruptions, extraneous conversations, and constant movement. Student tardiness was noted yet again. Respondent appeared frustrated but was not able to effectively control the situation and did not take any steps to correct or penalize the tardy students. As a means of helping Respondent, Mrs. Mendez suggested that Respondent work with Mr. Shaw who is the assistant principal that generally monitors attendance and discipline problems. Respondent was rated unacceptable in techniques of instruction because she did not deliver the instructional program acceptably in many areas. Also, upon the same grounds, Mr. Hanson prescribed help from Mr. Jones on this element. By memorandum dated May 7, 1984, Mr. Lawrence changed his recommendation for extended annual contract to dismissal because Respondent had failed to remediate her deficiencies and she was now more deficient than when he had observed her in March. Pursuant to Mr. Hanson's prescription of April 24, 1984, Mr. Jones worked with Respondent on May 17, 1984. He brought her material to use and discussed a number of areas: lesson planning and format, techniques, the Dade County balanced curriculum objectives, the possibility of his visiting one of her classes to provide feedback to her about her techniques of instruction, a possible policy of limiting hall passes, a technique for engaging students in group activities, and the need for having at least two activities per class. He brought three books for her to use, Ideals and Ideologies, The Russians, and Practical Methods for the Social Studies. He assisted with her lesson planning for the week of May 21-25, 1984. On May 24, 1984, Mr. Lawrence completed the annual evaluation of Respondent, rating her as deficient in preparation and planning, knowledge of subject matter, classroom management, and techniques of instruction. This constituted three more unacceptable areas than on her midyear evaluation. Mr. Jones returned to help Respondent on June 4, 1984. Based upon his visitation, he wrote several suggestions for Respondent. Subsequently, when Mr. Jones observed the class, Respondent was attempting to implement some of the recommendations he had made but the presentation was not well structured or organized. Approximately fifty percent of the class period was lost in digressions and expounding of Respondent's personal opinions. Mr. Jones testified that it is appropriate for teachers to get students to express their opinions; however, those opinions should be based on knowledge of the course concepts and should come from the students, rather than from the teacher so as to encourage students to think independently, to make rational decisions, and to not merely absorb their teacher's opinion. In time of confusion, Respondent unduly delayed clarification of instructions. Mr. Jones opined that if he had been a student, he would have had to have asked questions also and in his opinion, the students were being deprived of a minimum acceptable level of instruction. On June 7, 1984, Respondent was again formally observed by two administrators (Mr. Hanson and Mr. Shaw) using the TADS analysis system. Respondent was rated unacceptable in knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Respondent's performance had declined since Mr. Hanson's prior observation. She now was rated as having one acceptable category out of six. Mr. Hanson noted that the "students would have been better off to review without teacher's assistance." Respondent gave incorrect information and was very vague. She made several content errors and confused government forms with economic systems, using the terms synonymously. Mr. Hanson, under the impression that Respondent was still being recommended for a fourth year annual contract, recommended that she take course work over the summer in classroom management and subject matter. Respondent was rated unacceptable in classroom management because again there were at least nine interruptions of the same kinds as previously observed. However, where previously the Respondent had ignored inappropriate behavior, this time she indulged in a disruptive outburst reprimanding one student very loudly. There was a student in the room who had been withdrawn from school two weeks prior and recently readmitted. In returning this student to the office for a status check, Mr. Shaw missed several minutes of Respondent's class and his observation is somewhat impaired by this absence. It is to Respondent's credit that even during this period of suspension, this particular student sneaked into school to attend her class. At no time were more than half of the students observed to be on task. Mr. Shaw recommended that the Respondent work with Mr. Hanson to improve her classroom management. Respondent was rated unacceptable in techniques of instruction because there were only passive activities being pursued and there was little feedback from the students. Respondent's technique was ineffective in encouraging class discussion. There was inadequate use of media. Because the lesson was not in proper sequence, it created academic confusion. Again, Mr. Shaw recommended that Respondent seek help from Mr. Hanson. Respondent was rated unsatisfactory in teacher-student relationships because of the general lack of respect on the part of the students and because of Respondent's erratic reaction to the student's behavior. The observers prescribed the same help. Respondent was rated unacceptable in assessment techniques because there was no means of assessing whether or not the students were understanding the review process that was taking place. The observers prescribed the same help. In 1983 Respondent was referred to a nine-credit social studies course taught by Mr. Hanson at Nova University as part of the administration's attempts to help her master the subject matter of her course. She cooperated by taking the course but failed it. Complaints of misgraded, missing, and plagiarized papers arose among students in Respondent's classes. Administrators concluded that Respondent lacked an appropriate procedure for receiving, organizing, and monitoring papers for grading purposes. Students and parents complained that no effective teaching was going on and that the disorganization in the classroom even prevented individualized learning. On another occasion, Respondent was informally observed by administrators giving wrong information to students as to the number of municipalities in Dade County. Administrators also observed that her grammar, verb tenses and word choice were not a good example to her students. The undersigned observed this pattern at hearing. At the hearing, Respondent testified to an incorrect number of Florida counties. During her testimony, Respondent used the non-word, "malicy" instead of "malice." She used the word "connotatins" several times in contexts which more properly would have required either the word "confrontations" or "altercations." In no respect was "connotations" an appropriate word selection and Respondent defined the word "connotations" as meaning "disagreements." Respondent contended that her emphasis on rote copying from the board and reading aloud was an appropriate response to large classes the majority of whose members did not possess basic skills. Respondent explained that what her observers perceived as her poor grammar was actually "street talk" she intentionally used to reach culturally deprived students. While these may have been legitimate motivations, they do not excuse Respondent's never having progressed in the use of proper grammar and varied teaching techniques for communication with students when other teachers in the same school were able to do so. Respondent's explanation also does not ring true in light of Respondent's numerous grammatical and content errors during her own testimony. Mrs. Pino, the department head, offered additional help to Respondent during Respondent's three years at Miami Central Senior High School. She discussed classroom management, ways to diversify teaching, and other problems which came up on a daily basis. She discussed parent contacts in order to help with classroom management. She gave Respondent additional copies of some papers that Respondent has lost. She reviewed lesson plans with Respondent many times and on occasion would review a lesson plan with her prior to an administrator's observation. Pursuant to Mrs. Mendez' request, Mrs. Pino observed a whole period in order to help Respondent learn how to make smooth transitions from one classroom activity to another. Respondent testified that she encouraged students to borrow books from her even if it meant looking the other way when she knew they were removing them. Loaning or giving books away might be altruistic upon Respondent's part, and indeed, helpful to students' learning the subject matter or developing a love of history, reading, etc., but Respondent's practice of encouraging the fantasy of theft for learning's sake is hardly in the best interests of the child or the teaching profession. Respondent, a Negro, contended that it was her attempts to instill in her students pride in their Black heritage which resulted in her negative ratings. She based this primarily upon body language of Mr. Matlack she said she observed when she showed him the pamphlet "The Five Negro Presidents" (R-1). She claimed there existed a rehearsed "plot" by all the Petitioner's witnesses on the basis of either her minority heritage views or on the basis of her election as a steward in the union, United Teachers of Dade. This explanation is not credible. While "Black History" may certainly be a valid part or enrichment of a high school social studies curriculum, it cannot legitimately usurp all of the class time properly allotted to prescribed curriculum. Moreover, inaccurate history, even inaccurate Black History, serves no valid purpose. The undersigned finds that it was not this theme on a single occasion which observers were concerned with in rating Respondent, but the inaccuracy and confusion of her presentation of that theme which resulted in her negative rating on the one occasion to which she refers. Also this pamphlet was not used at every observation and cannot be attributed as the incentive for so many negative ratings by so many different observers. It is also noted that Mrs. Mendez and Mrs. Pino are of Hispanic background. Although Respondent has responded to criticism positively, was eager to improve, and cooperated readily in all of her observers' suggestions, she still never achieved the standards of competency required and expected by the Dade County School Board. This is so despite extensive efforts of her colleagues to help Respondent reach acceptable performance standards. Respondent has failed to teach efficiently and faithfully due to her failure to communicate and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience.
Recommendation Upon the foregoing findings of face and conclusions of law, it is RECOMMENDED that the Dade County School Board enter a Final Order in Case No. 84-3171 finding Respondent guilty of incompetency, affirming her suspension, dismissing her from her employment with the Dade County School Board, and denying her any claim for back pay. Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order in Case No. 84-3171A finding Respondent guilty of incompetency and incapacity and revoking her Florida Teacher's Certificate for ten years, subject to reinstatement as provided by law. DONE AND ENTERED this 27th day of March 1985 in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1985. COPIES FURNISHED: Craig R. Wilson, Esquire The Law Building, Suite 204 315 Third Street West Palm Beach, Florida 33401 Madelyn P. Schere, Esquire 1450 Northeast Second Avenue Miami, Florida 33132 William Du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132
The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the application of policy and practice by: establishing routines and procedures for the use of materials and the physical movement of students. formulating appropriate standards for student behavior identifying inappropriate behavior and employing appropriate techniques for correction. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2000.
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.
