The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should be granted.
Findings Of Fact Petitioner is a Black West-Indian male. Respondent is a political subdivision of the State of Florida responsible for operating the public schools in Broward County. Petitioner obtained a temporary teaching certificate from the Florida Department of Education in 2017. In October 2017, Petitioner was hired by Respondent as a teacher at Walker Elementary School. As a new teacher, Petitioner was a contract employee subject to a probationary period of one school year. During the probationary period, Petitioner could be dismissed without cause or resign without breach of contract. Petitioner worked at Walker Elementary School, where he did not have his own classroom, but worked with special-needs children in different classrooms, until the end of the 2017-2018 school year. There were no teaching positions available at that school for the 2018-2019 school year. In August of 2018, Petitioner was transferred by Respondent to Mirror Lake, where he filled a first-grade teaching vacancy. Andrea Gresham was the team leader for first-grade teachers at Mirror Lake. As a new teacher, Petitioner was assigned a mentor to assist him in acclimating to the duties of his position. In addition to being the team leader for all first-grade teachers at Mirror Lake, Ms. Gresham was also Petitioner’s designated mentor. Petitioner reported for work at Mirror Lake on August 7, 2018. At that time, Ms. Gresham took Petitioner on a tour of the campus. She also provided Petitioner with sample lesson plans and homework for the students. Throughout the week, Petitioner prepared for the first day of school for students with Ms. Gresham’s help. These preparations included Ms. Gresham reviewing procedures related to beginning-of-year testing, student homework, teacher planning, and student dismissal at the end of the school day. It was Ms. Gresham’s habit to keep dated notes relevant to her duties as a mentor and team leader. As a best practice, she regularly met with Principal Veliz to discuss the progress of new teachers. Ms. Gresham kept contemporaneous notes of her interactions with Petitioner and kept Principal Veliz advised of her observations. Ms. Gresham observed that Petitioner was not engaged within the team of first-grade teachers and had a difficult time grasping school procedures despite her attempts to guide him. The typical first-grade student is six years old at the beginning of the school year. Given how young these students are, the protocol at Mirror Lake requires teachers to take extra care to ensure that the students are directed to the correct mode of transportation during dismissal. Ms. Gresham explained the dismissal procedures and emphasized their importance to Petitioner on more than one occasion leading up to the students’ first day of school. Each first-grade student is given a lanyard that is color-coded to correspond to that student’s teacher. Teachers are responsible for writing each child’s mode of transportation, as provided to the teacher by the child’s parents, on his or her lanyard every day. At the end of the school day, the children are sorted by their mode of transportation and escorted by a designated teacher or paraprofessional. The students are categorized as: car riders, bus riders, walkers, or attendees of the on-site after-school program. August 15, 2018, was the first day of the school year for students at Mirror Lake. At the end of the school day, Petitioner, along with all of the other first-grade teachers, was responsible for assisting his students in reporting to the appropriate location for their respective modes of transportation. On August 15, 2018, Petitioner and Ms. Gresham were both assigned to the car-rider group. While Petitioner and Ms. Gresham were in the car-rider pickup area, Ms. Gresham became aware that a student was missing when a visibly upset parent exited his vehicle having learned that his child was not present for pick-up. Ms. Gresham sought help from the school resource officer and other teachers in an effort to locate the missing student. Principal Veliz testified credibly that this was the first and last time a student was unaccounted for at dismissal at Mirror Lake. Ms. Gresham asked to see the transportation log that Petitioner had compiled for his students to determine how the child was supposed to go home and where the mistake may have occurred. In reviewing Petitioner’s transportation log, Ms. Gresham noticed that the log had some children’s names listed under two different modes of transportation for the same day. As a result, Petitioner’s transportation log did not add any clarity to the situation. Meanwhile, teachers continued to search the campus for the missing student and the school resource officer escorted the father of the missing student to the office to speak with Principal Veliz. Once the student dismissal process was complete for the day, Principal Veliz convened a faculty meeting. During the meeting, the faculty learned that a second student from Petitioner’s class was missing. Principal Veliz adjourned the faculty meeting and assembled the team leaders in the office to assist in locating the two missing students. Petitioner returned to his classroom and did not join the effort to locate the missing students. The team leaders proceeded to call private daycares to ask if the missing students may have been transported to such a facility by mistake. Through these phone calls, both of the missing students were located at the same daycare. Thereafter, the children were reunited with their parents. Principal Veliz met with the parents of the children who had been mistakenly sent to the wrong location on August 15, 2018. Principal Veliz personally paid for the daycare center’s charges with respect to one of the students who had been inadvertently sent there. Principal Veliz testified that the parents were upset that their children had been misplaced and that the parents of one of the children requested a transfer to another first-grade teacher. Ms. Gresham had the opportunity to examine the lanyard belonging to one of the students who had gone missing during dismissal. She observed that Petitioner had written on the lanyard that the student was to ride the bus that day, although the parents had previously informed Petitioner that the student was to be picked up by car. In conducting a routine observational visit to Petitioner’s classroom during the first week of school, Principal Veliz observed conditions that she considered of urgent concern with respect to Petitioner’s academic practices and overall classroom management. She observed a lack of structure, including students in Petitioner’s class wandering around the room and playing with pencils as though they were swords without any redirection. Principal Veliz also observed that Petitioner was using obsolete and ineffective teaching methods. Principal Veliz contacted the school district’s employee relations and talent acquisition office to discuss Petitioner’s employment status. Principal Veliz was notified that Petitioner was still within his one-year probationary term, and that his employment could be terminated without a formal hearing or progressive disciplinary measures. Principal Veliz made the decision to terminate Petitioner’s employment prior to the end of his probationary status based on his unsatisfactory performance. Principal Veliz obtained a form letter from the school district’s human resources department, which she modified to fit Petitioner’s circumstances. The letter was dated August 23, 2018. The letter stated that Petitioner’s name would be submitted to the next School Board meeting for termination of employment during a probationary period and that Petitioner could choose to resign in lieu of termination. Petitioner chose not to sign the document. Petitioner’s employment was terminated at the next meeting of the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Rudyard Julius 19101 Northwest 11th Street Pembroke Pines, Florida 33029 (eServed) Michael T. Burke, Esquire Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. 2455 East Sunrise Boulevard, Suite 1000 Fort Lauderdale, Florida 33304 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
Findings Of Fact Background Respondent is a teacher certified in English, which he has taught while employed by Petitioner. He was first employed by Petitioner during the 1984-85 school year. In 1987, he was awarded a professional service contract. He has six years' teaching experience outside Highlands County. Principals or assistant principals routinely conduct annual teacher evaluations. The evaluation form contains two sections. Section 1 contains 14 categories that are marked based on one or more classroom observations. Section 2 contains 15 categories that are marked based on classroom observations and experience with the teacher. The back of the evaluation form explains the marks as follows: Mark Description Commendable (C) Indicates exceptional performance of the identified behavior(s). Satisfactory (S) Indicates satisfactory performance of the identified behavior(s) Needs Improvement (NI) Indicates a need for the employee to strengthen/improve performance of the identified behavior(s). Must Improve (MI) Indicates a need for the employee to remediate deficient behavior(s). If the deficiency is not corrected, the employee's contract status could be affected. The back of the evaluation form explains the "NEAT Procedure/Due Process": When an employee is evaluated as Must Improve, remediation procedures must be implemented as follows: Notice--The employee has the right to receive full written notification of the identified deficient behaviors. Explanation--The employee has the right to receive a full explanation for the reason behaviors are considered deficient. Assistance--The employee has the right to receive assistance in remediating the deficient behavior. Time--The employee has the right to a reasonable amount of time to achieve remediation. Various documents exist to normalize the evaluations of teachers. However, a degree of subjectivity necessarily remains in the evaluation process. Petitioner has prepared a booklet entitled, "Performance Appraisal System for Instructional Personnel" (Appraisal Booklet). The Appraisal Booklet introduced into evidence is dated October 5, 1992, but, judging from the cover letter from the superintendent, was in effect for the entire 1992-93 school year. The Appraisal Booklet contains, at page 12, a section describing the assessment process. The booklet states in part: When a competency or behavior is marked "NI-Needs Improvement," the appraiser shall provide counseling and/or resources whereby improvement may occur. For each competency or behavior which is marked "MI--Must Improve," a remediation procedure must be designed and implemented. The procedures will be described in a Professional Development Plan, as called for in the NEAT procedures. Each deficient item shall be addressed in a separate [Professional Development Plan]. The plan shall include the following: Area to be improved: specify the identified problem. Specific desired improvement: write as a measurable goal or objective. Action to be taken: describe action the involved parties will complete to achieve desired improvement. Assistance plan: List and describe who will provide assistance, showing role of each participant. Time line: specify dates for each activity to be completed and evaluated. Evaluation: describe how and when evaluation of progress or success will occur. Consequences: specify consequences if improvement is not achieved satisfactorily. The Appraisal Booklet contains, at page 15, a section entitled, "Use of Assessment Data for Personnel Decisions." This section requires written comments for every C, NI, or MI. Under a subsection entitled, "Unsatisfactory Ratings," the Appraisal Booklet states in its entirety: For every MI assigned, the assessor will conduct a follow-up of the Professional Development Plan to determine if the appraisee accomplished the required improvement and/or when that competency will be reassessed. Failure to improve within the expected time may be grounds for returning to annual contract for an employee holding a Professional Service Contract or a Continuing Contract. If the deficiency is not corrected during the second year, it may be grounds for non-renewal. (See NEAT) If the appraisee receives two consecutive unsatisfactory annual evaluations, the superintendent shall notify the Department of Education as required by statute. On [the evaluation form] three or more ratings of MI . . . will constitute an "unsatisfactory annual evaluation" for purposes of reporting to the DOE. The Appraisal Booklet discusses C's. Nothing in this section of the booklet explicitly addresses NI's except, as noted above, that comments must accompany each NI. The contract between Petitioner and the teachers discusses evaluations, but not in such detail as to address the meaning of NI's and MI's. Concerning remediation, the contract states: Where deficiencies are brought to the teacher's attention by his/her supervisor, the teacher shall be responsible for taking the necessary steps for improving his/her skills to an acceptable level as determined by the principal. Assistance shall be offered the employee and such assistance for improvement shall be noted in writing and a signed copy be retained by the appropriate supervisor and the employee. Following remediation, reassessment shall be accorded the employee in compliance with the procedures of Article XI. If the final assessment report fails to note specific deficiency, it shall be interpreted to mean adequate improvement has taken place. The professional judgment of the evaluator shall not be subject to the grievance procedure. The contract acknowledges that it shall not be interpreted to abridge or in any way usurp the authority or power of [Petitioner] as established by constitutional provisions or state Board of Education regulations or statutes existing at the time of the [contract]. And further, [Petitioner] shall be relieved of compliance with any term or condition of this [contract] if such compliance is contrary to any constitutional provision or state Board of Education regulation or statute in effect or enacted subsequent to the signing of this [contract]. Petitioner has no clear written or unwritten policy regarding whether a performance deficiency evidenced by an MI is corrected by an NI, rather than a C or an S. The determination whether a teacher has corrected performance deficiencies depends on the circumstances. The Lake Placid Teacher Handbook for the 1992-93 school year, a copy of which was given to Respondent at the beginning of the year, notes that teachers are to administer their assertive discipline plan and enforce all school rules. Regarding student control, "teachers must not argue with students, use profanity or sarcasm, and must keep hands off students." Petitioner's Code of Student Conduct for the 1992-93 school year describes the teacher's role in the maintenance of discipline as starting with the preparation of a classroom assertive discipline plan, which outlines a series of increasing consequences for disciplinary problems. Under the first step, the teacher will follow his or her plan, which may contain consequences such as withholding a privilege, isolation, counseling, detention, extra work, task assignment, or a parent conference. Under the second step, if the misconduct is repeated, the teacher shall try to contact the parent and record the result. Under the third step, the teacher will refer the matter to the social worker, school nurse, Guidance Committee, or School Attendance Review Committee for positive intervention. Under the fourth step, if the problem persists or the misconduct becomes a major disruption, the teacher will complete a student disciplinary referral form and a school administrator will determine the appropriate punishment. Evaluations Prior to 1991-92 School Year Respondent's evaluation dated November 13, 1985, contains all S's with the exception of an NI for circulating and assisting students. The evaluation was prepared by Donn Goodwin, an assistant principal at Sebring High School where Respondent was then teaching. Respondent's evaluation dated March 5, 1986, contains all S's except for C's in demonstrating friendly, positive attitude toward all students; maintaining academic focus; using effective questioning techniques; providing for practice; dependability; and punctuality/attendance. The evaluation contains one NI for parent/community relations. The comment accompanying the NI is obscured, but suggests that Respondent did not schedule enough parent conferences, although he did a good job with those that he conducted. The evaluation was prepared by James Bible, the principal of Sebring High School. Respondent's evaluation dated September 4, 1986, contains all S's except for C's in demonstrating effective communication skills, presenting subject matter effectively, maintaining academic focus, arranging physical features of the classroom for a safe learning environment, dependability, work attitude, and commitment. A note at the bottom of the evaluation states that Respondent maintained an "excellent class." The evaluation was prepared by Michael Agner, an assistant principal at Sebring High School. Respondent's evaluation dated February 25, 1987, contains all S's except for C's in maintaining academic focus and maintaining effective classroom control and an NI in using specific academic praise. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated April 6, 1988, contains all S's except for C's in demonstrating effective communication skills, having materials ready, maintaining academic focus, using effective questioning techniques, punctuality/attendance, quantity/quality of work, commitment, and professional behavior/ethics. The evaluation was prepared by Mr. Bible. Respondent's evaluation dated February 28, 1989, contains all S's. A comment under parent/community relations notes: "Need to continue working in this area. Parental support helps your teaching." A comment under student/staff relations adds: "Need to be mindful of backing students in corners with no alternatives." The evaluation was prepared by Mr. Bible. Respondent's evaluation dated October 17, 1989, was obscured in the copying process. It appears to contain all S's with some C's in Section 1. The evaluation was prepared by Thomas Knowles, an assistant principal at Sebring High School. Respondent's evaluation dated October 3, 1990, contains all S's. The evaluation was prepared by Ruth Hatfield, then an assistant principal at Sebring High School. Respondent's evaluation dated February 20, 1991, contains all S's except for C's in having materials ready and circulating and assisting students and NI's in punctuality/attendance, student/staff relations, personal appearance, and receptiveness. Among the comments under Section 1 is that the observer did not see Respondent's assertive discipline rules posted. Section 2 comments are that Respondent was often late and "very defensive--refuses criticism." Under student/staff relations, the comment is: "Alienates students. Backs up kids in corners. Need to be aware of this." Another comment suggests a need to dress more professionally. The final comment states: "Need to work on areas that deal with students and parents." The evaluation was prepared by Mr. Bible. A letter dated May 13, 1991, memorializes a conference that took place on May 9, 1991, between Respondent and Rebecca Clark, another assistant principal at Sebring High School. The letter states that Ms. Clark had noticed Respondent leaving his class while two guest speakers were making a presentation. Upon questioning, Respondent said that he had to run a quick errand and would be right back. Ms. Clark remained in the classroom until the end of the period, at which time Respondent returned. The letter warns Respondent that he must remain with his class and may not leave campus without prior authorization from an administrator. Evaluations During 1991-92 School Year A new principal, Calvin Smith, replaced Mr. Bible at Sebring High School for the 1991-92 school year. Mr. Smith conducted Respondent's next evaluation, which was dated December 2, 1991. Based on an observation taking place during a 50- minute period on November 26, 1991, Respondent received all S's in Section 1 except for a C in presenting the subject matter effectively and an NI in using specific academic praise. In Section 2, Respondent received S's in only five categories: keeping accurate records, punctuality and attendance, initiative, student evaluation, and professional growth. Receiving no C's in Section 2, Respondent received three NI's in personal appearance, receptiveness, and commitment and seven MI's in dependability, work attitude, parent/community relations, student/staff relations, quantity/quality of work, planning, and professional behavior/ethics. The comments for the NI's are brief and in handwriting. Under receptiveness, the comment is: "seem[s] to be afraid of dealing with a problem. I am only trying to make you a better teacher." The comment under commitment states: "dedicate yourself to your job. You have too much talent to waste." Each MI is treated in a separate Professional Development Plan. The Professional Development Plans, which are attached to the December 2 evaluation, consist of several parts: "area to be improved," "desired improvement," "action to be taken," "who will provide assistance," "time line for achieving objectives/goal/improvement," "evaluation process to determine improvement," and "consequences if improvement is not satisfactorily achieved." Under parent/community relations, the desired improvement is: "When dealing with parents you must exhibit an air of professionalism but be understanding." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over with the situation." Under dependability, the desired improvement is: "Should show he is able to be counted on without constant badgering." The action to be taken is: "Submit lesson plans on time. Supply I[n] S[chool] S[uspension] students with work when requested. Meet with parents without being directed to do so. Learn to deal with students as an adult rather than getting into shouting matches, etc." Under student/staff relations, the desired improvement is: "Show you understand students by working with them in correcting deficiencies." The action to be taken is: "Don't get in students['] faces and yell at them. Don't allow things to go on and then establish a rule of the next one goes to the office. Learn to deal with student problems rather than expecting the office to handle the problem." Under work attitude, the desired improvement is: "Show that you like what you do. Turn students on to your subject. Work on faculty relations." The action to be taken is: "Be cooperative in dealing with parents, students, and faculty members. Present an atmosphere of enthusiasm that is contagious and infectious to those around you." Each Professional Development Plan states that assistance or training would be provided if requested by Respondent. For student/staff relations, the plan states: "Inservice will be provided by administrators as requested and a workshop may be recommended." Similar language is contained in the plan for work attitude. Under time line for achieving objectives/goal, improvement, each Professional Development Plan states: "Should show some immediate improvement but enough improvement must be shown prior to evaluation in 92/93 school year to remove the MI." Each Professional Development Plan describes the evaluation process to determine improvement as: "List kept of ineffective behaviors. [Respondent] will be given a copy of each item placed in folder." Each Professional Development Plan warns that, "if improvement is not satisfactorily achieved," there will be a "recommendation to place [Respondent] back on annual contract." By letter dated December 16, 1991, Mr. Smith refers to the evaluation and the evaluation conference that took place on December 5, 1991. The letter notes that one of the Professional Development Plans required Respondent to supply in-school suspension students with work when requested. The letter acknowledges that Respondent had said at the conference that he would take care of all of the MI's. The December 16 letter notes that Respondent had already failed to provide make-up work for five named students who had been sent to in-school suspension. Students punished by in-school suspension are prohibited from attending their classes, but are sent to another part of the school. It is important for their teachers to provide their assignments, so the students can study the same materials that the teacher is presenting to their classes. The December 16 letter concludes: "Repeated cases of this problem will lead to my recommendation to the superintendent that you be suspended without pay for five (5) days for gross insubordination." Respondent received a second evaluation from Mr. Smith during the 1991-92 school year. Dated March 3, 1992, the second evaluation is slightly worse than the first. Section 1 contains the same C for the presentation of the subject matter and NI for using specific academic praise. A new NI appears in Section 1 for demonstrating friendly attitude toward all students, and a new MI appears for maintaining effective classroom control. The new MI rating appears to be based in part on Respondent's allowing several students to have food and drink in the classroom after telling one student to dispose of his food or drink. In Section 2, Respondent received five S's, as he did in the first evaluation, as planning went from MI to S and punctuality/attendance went from S to NI. Work attitude improved from MI to NI, but personal appearance and receptiveness went from NI to MI. A written comment states that dependability improved some, but not enough to remove the MI. The MI's on the March 3 evaluation are again the subject of attached Professional Development Plans. Under dependability, the desired improvement is: "Show you are able to be counted on without constant badgering." The action to be taken is: "Learn to deal with students without being sarcastic or getting into shouting matches. Student and parent complaints are numerous." Under parent/community relations, the desired improvement is: "Exhibit an air of professionalism in meetings with parents." The action to be taken is: "Schedule parent conferences as needed to resolve situations with students. Apologize for your actions if need be and start over. Show parents you care about their child." Under student/staff relations, the desired improvement is: "Work with students in correcting deficiencies." The action to be taken is: "Learn to deal with student problems. Be more friendly. Be consistent in your discipline but be fair." Under receptiveness, the desired improvement is: "Be able to listen to constructive criticism and follow suggestions made by administration." the action to be taken is: "Follow rules and regulations established for personnel and students at Sebring High School rather than defying directions given by an administrator." Each of the Professional Development Plans states that the administration will provide assistance or training if requested to do so by Respondent. The time line for achieving objectives/goal/improvement is now "immediate" for the cited areas. There is no longer any mention of the removal of MI's, except that the Professional Development Plan for student/staff relations requires: "Immediate improvement--MI must be removed prior to October 92 visitation." The consequence of Respondent's failure to remove the MI's remains returning him to annual contract. The March 3 evaluation is followed by a letter dated March 9, 1992, from Mr. Smith to the superintendent. Mr. Smith writes that Respondent has not improved since the December 2 evaluation and recommends that Respondent be placed on annual contract for the following school year. The Grievance Process On March 13, 1992, Respondent filed a grievance seeking a list of specific remedies for each MI in the March 3 evaluation, adherence to the NEAT procedure, a reconfirmation of the deadline stated in the December 2 evaluation of 1992-93 "for remediation," withdrawal of the recommendation that Respondent be returned to annual contract, and transfer of Respondent to another position where he could be evaluated by someone not part of the current Sebring High School administration. Mr. Smith responded to the grievance with two documents, both dated April 7, 1992. In a three-page memorandum, Mr. Smith recounted the December 2 evaluation, noting that Respondent's "statement to all of this (as he signed the assessment and the PDP's) was, 'You mean all I have to do is correct these and I will get satisfactories?'" The April 7 memorandum notes that the March 3 evaluation was worse than the December 2 evaluation. Despite the fact that, with one exception, the March 3 evaluation did not equate correction with the removal of MI's, the April 7 memorandum states: "[Respondent] still has until the 1992-93 assessment to remove the MI's from his assessment. However, if he does not, he will be notified of non-renewal of a contract for 1993-94." Attached to the April 7 memorandum are "Specific Remedies for Must Improve." These remedies track the areas receiving MI's in the evaluations and discussion in the Professional Development Plans. Under maintaining effective classroom control, the April 7 attachment informs Respondent that he is to ensure that his students follow the rules. Under dependability, the April 7 attachment gives 12 examples of assignments that Respondent must perform. These include timely providing grades for meetings of the School Attendance Review Committee, remaining current with printed attendance sheets, submitting in-school suspension assignments when requested, arriving and leaving on time, not leaving the classroom unattended, and not allowing the students to break the rules. Under parent/community relations, the April 7 attachment states that Respondent should meet with parents at his initiative rather than waiting until irate parents demand a conference after hearing their child's complaints. Also, the attachment advises Respondent to be "gentle" with parents and not be negative. The attachment suggests that Respondent return parents' telephone calls. Under student/staff relations, the April 7 attachment warns Respondent not to back students into a corner. The attachment notes that many reports indicate that Respondent uses sarcasm with students and then disciplines them when they reciprocate with sarcasm. The attachment recommends, "Work on your personality to be more accepting and understanding of students." Under quantity/quality of work, the April 7 attachment suggests that Respondent spend more time on grammar rather than literature alone. The attachment suggests that Respondent should become involved with students' activities so that they know that he cares about them, as well as about what they learn. Under receptiveness, the April 7 attachment notes a lack of desire by Respondent to change his attitude about the providing in-school suspension assignments. Under professional behavior/ethics, the April 7 attachment recommends that Respondent not retaliate against students. It is unclear exactly what Mr. Smith means by "retaliate"; it may mean confront the students in class or respond to the students' sarcasm with sarcasm. By letter dated May 13, 1992, Deputy Superintendent John Martin decided the grievance by determining that Petitioner would grant Respondent a subsequent year of employment, under a subsequent year or annual contract, to correct the indicated deficiencies, and, if Respondent "corrects the indicated deficiencies," he would be given a new professional service contract. The May 13 letter also states that Respondent would be transferred, as he had requested. Respondent chose not to pursue additional grievance procedures available to him, so the grievance was resolved at this point. On May 15, 1992, Petitioner informed Respondent that he had been appointed for a "subsequent year of employment . . . on annual contract pursuant to Florida Statute 231.26(3)(e)." On June 23, 1992, Petitioner and Respondent executed a contract for a "'subsequent year of employment,' as that term is used in 231.36(3)(e), Florida Statutes . . .," for the 1992-93 school year. The 1991-92 School Year During the 1991-92 school year at Sebring High School, Respondent experienced problems in his relationship with the students and parents and in his inability to fulfill certain important responsibilities imposed on each teacher. With students, Respondent was often sarcastic. When the students returned in like kind, Respondent took offense and disciplined them, often with a disciplinary referral to the office. Mr. Smith witnessed a half dozen confrontations between Respondent and students in the main office where Respondent made derogatory remarks to the students. With parents, Respondent often failed to behave professionally in parent/teacher conferences. He walked out on one conference involving a parent who was also a teacher at Sebring High School. He often responded negatively to parents and sometimes failed to follow through on conferences or even return parents' telephone calls. Respondent was often late in fulfilling his duties. He was frequently late in getting his grades or attendance sheets to the Student Attendance Review Committee, which consisted of a guidance counsellor, an administrator, student's teachers, and student's parents who met periodically to discuss a student's attendance problems. Respondent consistently failed to submit assignments for students who had been assigned to in-school suspension. Each of the deficiencies described in the preceding paragraph interfered materially with Respondent's performance as a teacher. With respect to each of these deficiencies, Respondent was materially worse than his fellow teachers at Sebring High School. The resulting evaluations were the worst ever given by Mr. Smith, who describes himself as a hard evaluator. Evaluations During the 1992-93 School Year As Respondent demanded in the grievance, Petitioner transferred Respondent to Lake Placid High School for the 1992- 93 school year. He was assigned to teach English to all of the ninth grade students except those in honors and dropout prevention. On November 3, 1992, Respondent received his first evaluation at Lake Placid High School. He received all S's except for C's in demonstrating effective communication skills, and student evaluations and NI's in maintaining academic focus and maintaining effective classroom control. The evaluation was prepared by David Robinson, who was an assistant principal. On February 25, 1993, Respondent received a second evaluation for the 1992-93 school year. This evaluation, which was prepared by the principal, Roger Goddard, was worse than the first. There were no C's, and there were NI's in demonstrating friendly attitude toward all students, maintaining academic focus, parent/community relations, student/staff relations, receptiveness, and professional behavior/ethics. Under the comments in Section 1 of the February 25 evaluation, a note reads: "Needs skills in [knowing] when to use in-class discipline or office referral." The handwritten comments under Section 2 note that Respondent "had difficulty dealing with parents in conferences an/or returning phone calls" and "lack[s] rapport with students, staff, and administration." The handwritten comments state that Respondent is "many times defensive during conferences with administrators" and "needs a better procedure with make-up work utilizing school policy." By letter dated March 19, 1993, Dr. Goddard informed Respondent that he would be unable to reappoint Respondent for employment at Lake Placid High School for the following school year. Respondent asked Dr. Goddard to perform another evaluation, and Dr. Goddard did so on April 23, 1993. There were fewer NI's than in the February 25 evaluation, but the evaluation was not much better. Under Section 1, Respondent received all S's except for an NI in demonstrating a friendly attitude toward all students. An anecdotal comment adds: "There have been over 70 referrals for discipline during the year. This is as many as 20 other teachers combined." Under Section 2, Respondent received all S's except for three NI's in parent/community relations, student/staff relations, and receptiveness. Accompanying handwritten notes state that Respondent "still shows difficulty in dealing with parent conferences," "still lacks understanding of role of assistant principal [and] staff," and "many times still defensive regarding suggestions from administration." By letter dated April 26, 1993, Dr. Goddard advised Respondent that he could not change his original recommendation given on March 19. The letter states that the recommendation is based on the need for a change in the ability to handle discipline effectively within the classroom, handle parent conferences without conflict, and be receptive to administrative suggestions without a defensive attitude. By letter dated April 30, 1993, to Dr. Goddard, Respondent states, in part: . . . Some administrators are possessed by a sort of spectral indifference, and look at their fellow beings as ghosts. For them, teachers and other staff members are often merely vague shadowy forms, hardly distinct from the nebulous background of such a life, and easily blended with the invisible. But you, Dr. Goddard, are an honorable man and I believe, from our conversations, that you really care about the parents, staff, and students of our school. . . . Respondent's letter to Dr. Goddard discusses the preceding evaluation and asks for an opportunity to continue teaching. By letter dated May 25, 1993, Superintendent Richard Farmer states that Dr. Goddard had informed Mr. Farmer that Respondent had not successfully removed all deficiencies from his evaluation. The letter advises Respondent that his annual contract was expiring, Dr. Goddard had decided not to issue Respondent another annual contract, and, according to Section 231.36(4), Florida Statutes, Petitioner would not issue him a new professional service contract. By notice to the Florida Department of Education dated June 2, 1993, Dr. Goddard advised that, after two consecutive unsatisfactory annual evaluations, Respondent's employment with Petitioner was being terminated or not renewed. The 1992-93 School Year Despite the absence of MI's on the 1992-93 evaluations, the problems Respondent had experienced with students, parents, and administrators in 1991-92 worsened in 1992-93. With respect to relations with students, the basic problem is that Respondent reverted to sarcasm at Lake Placid High School, and his students reciprocated, just as his students at Sebring High School had done the prior year. Sarcasm bred sarcasm, which bred disciplinary referrals--125 of them in fact. Respondent outdistanced his nearest competitor in disciplinary referrals by 2.5 times. On two separate days, Respondent submitted more than 10 disciplinary referrals--more than most teachers submitted all year. As Dr. Goddard's comment notes, Respondent issued more disciplinary referrals than a score of his colleagues. The huge number of disciplinary referrals did not mean that Respondent was maintaining firm control of his classes. To the contrary, he was not able to maintain firm control of his classes, partly due to the atmosphere of mutual disrespect that his sarcasm engendered. The number of disciplinary referrals indicated that Respondent had lost control of the situation and tried to shift to the administrators the job of regaining control of his classroom. A major part of the problem, in addition to Respondent's sarcasm, was his inability to adhere to his own assertive discipline plan. Respondent's assertive discipline plan, which was duly posted in his classroom, contains the following consequences in increasing order of severity: warning, contact parents, detention, and office referral. Sometime during the school year, Respondent switched the second and third consequences, so that he would place a student on detention before he would contact the parents. This change was duly posted in the classroom. Respondent's assertive discipline plan is satisfactory, but he never adhered to it. Sometimes he gave detentions, but then failed to appear at the location where the students were to serve the detentions. Sometimes Respondent simply placed the offending students in the hall where they remained, unsupervised, in violation of school rules. Sometimes Respondent gave warnings, and often he gave disciplinary referrals. But he displayed an aversion to parent/teacher conferences by almost invariably omitting the step that required him to contact a parent. Nearly all disciplinary referrals were made prior to this step taking place, and many were made prior to giving the student a detention. Respondent clung doggedly to his sarcasm despite all efforts to free him from this habitual behavior. Dr. Goddard intervened at one point during a parent/teacher conference and prevailed upon Respondent to stop using sarcasm against the student who was the subject of the conference. Respondent's response was to post a sign in his room indicating a "moratorium" in the use of sarcasm--intentionally implying that the cessation in sarcasm would be temporary. At times, Respondent lashed out at students with hurtful remarks lacking even the thin veneer of humor. He told one student that he would be a serial killer. He told another student that he would never be rich and successful. He repeatedly referred publicly to one student as a witch and asked if she had taken her Midol. In front of another student's mother, as well as other teachers and Mr. Robinson during a parent/teacher conference, Respondent referred to a girl as "bitchy." Respondent refused to accommodate valid student needs, such as the unusual demands placed on one child by a disabled brother. The regressive effect on students of Respondent's embittered and embittering classroom presence was unwittingly reflected in another student's class journal. His early entries demonstrated an emotional vulnerability as he depicted his simple, rural lifestyle; his later entries were defiantly copied out of textbooks, magazines, or encyclopedias. As a result of Respondent's poor relations with students, more than one student quit Respondent's class, even if it meant taking English in summer school or another school or dropping out of high school altogether. One parent checked her son out of school just long enough that he would not have to attend Respondent's class. By the end of the 1992-93 school year, morale among Respondent's students and their parents was a very serious problem. Respondent's relationship with parents was, if possible, even worse than his relationship with students, although his contact with parents was less frequent. During one meeting with a father in the main office, the parent and Respondent had a heated exchange. Mr. Robinson intervened and diplomatically tried to end the conference. After the parent had started to walk away, Respondent restarted the argument and approached the parent until their noses were touching. Mr. Robinson again broke up what had transformed from a conference into a confrontation, and again Respondent reinitiated the engagement. Again, Mr. Robinson had to break up the argument. Mr. Robinson attended another parent/teacher conference in which the mother, according to Respondent, looked at him with "eyes . . . like daggers." (Tr 541) The mother observed that her daughter had no problems in any other classes but Respondent's class. The parent charged that Respondent's class was out of control. Respondent saw that Mr. Robinson was not "going to fulfil his role as mediator," so Respondent got up, announced that "I'm not going to take this damn stuff anymore," and walked out of the conference. (Tr 542) At first glance, Respondent's relationship with the administrators seems better than his relationships with the students and parents, but this is due to the professionalism of Dr. Goddard, inexperience of Mr. Robertson, and uninvolvement of Ms. Hatfield. For different reasons, each administrator at the school responded differently to Respondent's increasingly bizarre behavior and in no case did any administrator at the school ever lose his or her composure in dealing with Respondent. Respondent believes that he has been unfairly treated by every administrator at Lake Placid High School, and at least two at Sebring High School. Interestingly, Ms. Hatfield had given Respondent his last evaluation-- in October, 1990--without an NI or MI. However, without any evident provocation, Respondent demanded that the other assistant principal, Mr. Robinson, handle Respondent's evaluations and disciplinary referrals. Respondent was apprehensive that Ms. Hatfield might be biased due to her past service at Sebring High School. In November, 1992, Ms. Hatfield had a conference with Respondent and cautioned him that she was receiving a number of student complaints about his use of sarcasm. Respondent's reaction was to request that he be evaluated by Mr. Robinson, who was in his first year of service as an assistant principal. In retrospect, Respondent's demand proved unwise. As evidenced by his treatment of another teacher, Mr. Robinson displayed a heightened sensitivity toward humor directed at students, even if the humor did not seem sarcastic at all. Thus, Mr. Robinson's concern about Respondent's sarcasm was not due to bias against Respondent, but was due to Mr. Robinson's concern that students be treated with dignity and respect. But, as noted above, even without Mr. Robinson's heightened concern about humor, Respondent's sarcasm exceeded the wildest imaginable limits. Dr. Goddard intervened after the first evaluation. Respondent's concern about bias defies reason and logic when applied to Dr. Goddard, who counselled Respondent and gave him an opportunity to discover for himself the shortcomings of his defensive style of dealing with students, parents, and administrators. To imply that Dr. Goddard's evaluations were orchestrated by individuals at Sebring High School or the district office is to ignore reality. As discussed in the Conclusions of Law, the very lack of coordination presents legal problems that could have easily been avoided with the smallest amount of coordination. Respondent had trouble with nearly every administrator. And Respondent consistently found himself the blameless target of unwarranted persecution. His paranoia interfered with his ability to do his job. This fact is best illustrated by the time that Dr. Goddard instructed the teachers to clean up their rooms in preparation for a visit that night by the school board. Respondent wrote the following on his chalkboard to be read by the school board members: "The fact that you're paranoid doesn't mean that they are not out to get you." In addition to problems with students, parents, and administrators, Respondent continued to display an inability to fulfill his important responsibilities. He failed to appear at ninth grade orientation at the beginning of the school year, despite the fact that he was a new teacher at the school and taught most of the ninth graders. Respondent routinely failed to supply grades to students for whom guidance counsellors were trying to prepare weekly progress reports in order to monitor the students' progress more closely than is possible with report cards. Respondent was routinely resistant to assigning make- up work. Students would have to pursue him for days to get assignments, until finally Respondent decided to write these up on the chalkboard. On more than one occasion, Respondent's solution--when pushed by parents or administrators--was to avoid the extra work imposed upon him by grading additional materials; rather than assign make-up work or tests, Respondent would simply not penalize the student for the missed assignment, such as by doubling the weight of the next grade. There is no evidence that the administration at Lake Placid High School learned of Respondent's 1991-92 evaluations at Sebring High School until Respondent mentioned them when he received his first evaluation at Lake Placid High School. There is no evidence that the actions taken by the administration at Lake Placid High School were influenced by anything except the Respondent's performance during the 1992-93 school year. Respondent was warned about his problems in evaluations going as far back as the 1980's when Respondent was evaluated by Mr. Bible. The March, 1986 evaluation identifies Respondent's reluctance to deal with parents. The February, 1989 evaluation suggests that Respondent lacked the support of parents and was placing students on the defensive. In the February, 1991 evaluation, Mr. Bible warned Respondent that he needed to improve in several areas, including student/staff relations and receptiveness to criticism from administrators. Again, Mr. Bible pointed out that Respondent was alienating students. Respondent's problems, which culminated in the exceptionally bad evaluations during the 1991-92 school year, largely represented a continuation of problems that had been identified in one manner or another for the preceding five years. But instead of correcting the problems, Respondent had allowed them to get worse. These problems were described in greater detail in the 1991-92 and 1992-93 evaluations due to the deterioration of Respondent's behavior. Petitioner provided Respondent with reasonable assistance in remediating his performance deficiencies. Dr. Goddard made numerous additional visits to Respondent's classroom, and he and other administrators routinely talked to Respondent. After the first evaluation in November, 1992, Mr. Robinson twice recommended to Respondent that he rely on his assertive discipline plan because he was referring too many students to the office. After discovering how poorly Respondent handled parent conferences, administrators ensured that appropriate persons participated in Respondent's conferences to model suitable behavior. In early February, 1993, Mr. Robinson gave Respondent a set of assertive discipline tapes to view to assist in imposing proper discipline in his class. This intervention preceded the February 25 evaluation by almost three weeks. About one week prior to the February 25 evaluation, Mr. Robinson suggested that Respondent attend a workshop on parent/teacher conferences. Respondent attended the workshop. Evidently arranged prior to the February 25 evaluation, Respondent went to a high school in another district to observe a ninth-grade English teacher. The practical effect of this assistance is attenuated by the fact that the February 25 evaluation preceded the visit, although the visit preceded the March 19 non-appointment letter, April 23 follow-up evaluation, and April 26 follow-up letter. The extent of the assistance effectively offered Respondent must be evaluated in the context of Respondent's problems. He was not an ineffective teacher due to an inadequate grasp of the course material or inability to present material imaginatively. To the contrary, Respondent is a highly intelligent, literate individual who is intellectual capable of being an outstanding teacher. If his problems were in his understanding of the material or an inability to find the methods to convey the material to his students, a program of assistance and inservice workshops probably could be designed to provide meaningful help. Instead, Respondent needed to stop disparaging students. He needed to stop confronting parents. He needed to stop ignoring administrators who were trying to stop Respondent from disparaging students and confronting parents. But Respondent simply refused to change his ways, and no amount of videotapes, inservice workshops, school visits, evaluation follow-ups, and informal discussions were going to help. Respondent was given a second chance when he was transferred to Lake Placid High School. But instead of addressing the source of the problem-- himself--he attacked students, parents, and administrators. He avoided performing rigorously all of his teaching duties, such as enforcing his assertive disciplinary plan and its graduated response to misbehavior, promptly providing make-up work, and sending interim grades when needed. Instead, he inexplicably continued to bicker with the students, provoke the parents, and defy the legitimate demands of the administrators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Highlands County enter a final order not issuing Respondent a new professional service contract. ENTERED on January 13, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 13, 1993. APPENDIX Rulings on Petitioner's Proposed Findings 1-6: adopted or adopted in substance. 7-8: rejected as irrelevant. 9-18: adopted or adopted in substance. 19: rejected as irrelevant. 20-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-39: adopted or adopted in substance. 40: rejected as irrelevant. Nothing requires that Petitioner make "every effort" to help Respondent through the means cited. 41: adopted or adopted in substance. 42: rejected as subordinate. 43-44: adopted or adopted in substance. 45: rejected as irrelevant. 46: adopted or adopted in substance. 47-48 (first three sentences): rejected as irrelevant. 48 (last sentence)-53: adopted or adopted in substance. 54-56: rejected as irrelevant. 57-59: adopted or adopted in substance. 60-61: rejected as irrelevant. 62: adopted or adopted in substance. 63: rejected as irrelevant. 64-65: adopted or adopted in substance. 66: rejected as subordinate. 67-69: adopted or adopted in substance. 70: rejected as subordinate. 71-74: adopted or adopted in substance. 75-76: rejected as subordinate. 77-78: adopted or adopted in substance. 79: rejected as hearsay. 80-85: adopted or adopted in substance. 86: rejected as irrelevant. 87-92: adopted or adopted in substance. 93: rejected as subordinate. 94: rejected as irrelevant. 95-100: adopted or adopted in substance. 101: rejected as irrelevant. In fact, to permit either student to leave the classroom would violate Paragraph 11 of the Classroom Management section of the Teacher Handbook. 102: rejected as irrelevant. Mr. Smith wore sunglasses indoors during part of the hearing. 103-04: rejected as irrelevant. 105: rejected as subordinate. 106-17 (first sentence): adopted or adopted in substance. 117 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 118: rejected as irrelevant and subordinate. 119: rejected as hearsay. 120-34: adopted or adopted in substance. 135-37: rejected as irrelevant. 138: adopted or adopted in substance. 139: rejected as irrelevant. 140: adopted or adopted in substance. 141: rejected as irrelevant. 142-43: adopted or adopted in substance. 144: rejected as subordinate. 145-46: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-7: adopted or adopted in substance. 8-10: rejected as irrelevant. 11-14: adopted or adopted in substance. 15-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 17 (second sentence): adopted or adopted in substance. 18-19: rejected as unsupported by the appropriate weight of the evidence. 20: adopted or adopted in substance. 21-22: rejected as subordinate. 23-24: rejected as unsupported by the appropriate weight of the evidence. 25-26: rejected as subordinate. 27-28 (first sentence): adopted or adopted in substance. 28 (second sentence)-29: rejected as unsupported by the appropriate weight of the evidence. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence. 32: rejected as subordinate. 33: rejected as unsupported by the appropriate weight of the evidence. 34: rejected as unsupported by the appropriate weight of the evidence. This provision governs only when Petitioner must refer matters to the Department of Education. 35: rejected as subordinate. 36: rejected as unsupported by the appropriate weight of the evidence. 37-39: adopted or adopted in substance except as to meaningful follow-up conferences. 40-41: rejected as unsupported by the appropriate weight of the evidence. 42: rejected as irrelevant. COPIES FURNISHED: Superintendent Richard Farmer Highlands County School District 426 School St. Sebring, FL 33870-4048 Commissioner Doug Jamerson Department of Education The Capitol Tallahassee, FL 32399-0400 James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870-3698 Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302
Findings Of Fact At all times pertinent to the allegations contained in the Notice of Charges, Williams was employed by the School Board in a variety of capacities. With the exception of paragraph 22, which, to preserve continuity, will be consolidated with paragraph 2 of the Notice of Charges, the allegations shall be considered seriatum. That during the 1965-1966 school year, the Respondent did receive an overall unsatisfactory rating. That the Respondent in the 1965 and 1966 school years received a poor rat- ing in the following area: "Relation- ship with others," and "Is healthy and emotionally stable;" and further received an unsatisfactory rating in the category of "works well with others," end "demon- strates professional attitude and imple- menting school policy." The evidence indicates that for the school year 1965-1966, Williams received an average score of 3.3 on his Dade County evaluation form. According to the form an average rating below 3.5 indicates unsatisfactory work in Dade County schools. On that same evaluation form Williams received a 3.0 rating for the category "Works well with others." There was no rating for "Is healthy and emotionally stable." Williams received a 2.8 rating for the category "Understands and supports school policies aid demonstrates a professional attitude in implementing them." From the 1965-1966 school year until the present Williams has consistently received satisfactory overall ratings for his work in the Dade County schools. That on or about January 16, 1968, the Respondent, while a visiting teacher with the School Board of Dade County, and more particularly assigned to Gladeview Ele- mentary School, the Respondent, did without reason or authority demanded [sic] of the principal, Mr. Leonard Wollman, his reason for having a child stand outside and perform a task signed by the principal. Said demand made by the Respondent was made in a loud, rude and unprofessional manner, and was over- heard by numerous persons located within the confines of the school. On or about January 16, 1968, Mr. Leonard Wollman was principal of Gladeview Elementary School and at that time observed a student throw an apple out a school window. When the student refused to pick up the apple, Mr. Wollman made the student pick it up along with other trash. At that time, Williams criticized the handling of the incident by Wollman and claimed that the child was being mistreated. There was a lack of competent substantial evidence to establish that Williams' inquiries as to the handling of the incident were made in a loud, rude and unprofessional manner. There was a complete absence of evidence to establish that Williams' comments were overheard by numerous persons located within the confines of the school. That during the 1969-1970 school year, the Respondent, Charles Williams, did receive an unsatisfactory evaluation in the area of personal characteristics and leadership, notwithstanding an overall average of 4.2. The Dade County evaluation form for school year 1969-1970 reflects that Williams received a score of 3.0 in each of two categories of personal characteristics and leadership. The remarks section indicates "Needs improvement in human relations and group processes, which hopefully he will develop within the year. Otherwise, performance this year has been outstanding." That during the year 1970, more particularly, during the month of October, 1970, the Respondent was required by the Director of the North Central District to submit to the district office a plan for gifted children to participate in a program as outlined by the District Office. Further, as a result of the Respondent's failure to comply with the directive of the District Office two deserving children from the Respondent's school were left out of the program. There is no evidence in the record to establish that Williams was required to submit a plan for gifted children. There was evidence to establish that Williams was required to submit the names of students in his school who qualified for the gifted child program by October 30, 1970, and that such names were submitted late. Notwithstanding the late submission, the names were still considered for the gifted child program. Furthermore, there is an absence of competent substantial evidence to establish that at deserving children were left out of the program because of the actions of Williams. In the final analysis, Williams is charged with failing to submit a plan when the evidence shows that he was not required to submit a plan. Accordingly, the charge is not supported by the evidence. That on or about November 23, 1970, the Respondent did berate and make sarcastic and provocative remarks to Mrs. Carol Kleinfeld because said teacher had sought a transfer from the school where the Respondent served as principal. On Motion of Williams at the hearing, the undersigned ruled that there was a complete absence of evidence to support this charge. That on or about March 1, 1971, the Respondent did berate Mrs. Carol Kleinfeld who [was a] teacher at the school where the Respondent is principal and further did scream and shout at [her] in a violent and threatening manner further threatening that he would fire all parties concerned. During the 1970-1971 school year, Carol Kleinfeld worked for Williams at Primary C Elementary School. From time to time, Williams and Mrs. Kleinfeld engaged in discussions concerning Mrs. Kleinfeld's performance of her duties. The evidence establishes that Williams was displeased with the performance and gave Mrs. Kleinfeld the lowest possible performance rating. The evidence also establishes that Williams pointed his finger at Ms. Kleinfeld on one or more occasions. However, there is an absence of competent substantial evidence to establish that Williams berated Ms. Kleinfeld or that he screamed and shouted at her in a violent and threatening manner. That during the 1970-1971 school year, the Respondent acted in such an unprofes- sional fashion towards teachers assigned to his school, that numerous teachers requested transfers to other schools as a result of the humiliating and threaten- ing attitudes of the Respondent. There was no competent substantial evidence to establish that Williams acted in an unprofessional manner toward his teachers or that numerous teachers requested transfers because of Williams' conduct. That on or about April 4, 1975, the Respondent did, in front of children and custodians, harass, threaten and berate one Franklin Clark, Coordinator of Primary C Elementary School, con- cerning an event which did not happen. On April 4, 1975, Franklin Clark was Community School Coordinator for Primary C Elementary School. Clark's working hours were from 2:00 to 10:00 P.M. On several occasions, prior to that date, Clark had taken extended supper without informing Williams. When Williams discovered this practice, he had occasion to correct Clark and reiterate the requirement that Clark be present at the School for the appropriate period of time. On the day in question, Williams confronted Clark with an accusation that Clark had not been present during his proper working hours the night before. Clark denied the accusation. While Williams was angry during that conversation, there was no evidence to establish that he harassed, threatened or berated Clark during the encounter. That during the year 1975, the Respondent did fail to cooperate with other school principals, more particularly Ms. Della A. Zaher, principal at Edison Park Elementary School, in that he failed to cooperate with a fellow school principal in establishing and coordinating the articulation plans for the second and third grade students. While the evidence shows that Williams did not in fact work with Ms. Zaher in establishing articulation plans for second and third grade students, the record is devoid of any evidence which would establish that Williams was required to do so. In fact, inter school cooperation was necessary only as desired by participating principals. The evidence does establish that Williams followed prescribed procedure for articulation plans and that there would have been no real benefit in deeling with Ms. Zeher as she had requested. That on or about November 19, 1976, the Respondent did leave a meeting early without authorization which meeting was for the purpose of the area superintendent to explain the alternative plans for attendance. The evidence establishes that on November 19, 1976, Williams attended a meeting of principals, directors, and area office personnel, called by the area superintendent. Williams left the meeting early. However, the evidence affirmatively establishes that no permission was required for any of the participants of the meeting to leave early. That during the month of November, 1976, the Respondent did fail to observe and follow the purposes outlined by Robert Little Supervisor of the attendance office, in his memorandum entitled, "Pro- cedures and Calendar for the Development of the 1977-78 Attendant Zone Changes," dated November 4, 1976. That by failing to follow the plan as outlined by the memorandum, the Respondent's actions created the potential for negative parent/community reaction. That the Respondent did not provide a written plan to the area office for con- sideration until February 8, 1977, and said report was scheduled to be rendered to the area office and the area superintendent on November 19, 1976. All other principals met this deadline. The evidence affirmatively establishes that the memorandum in question did not require Williams to do anything. The alternatives available in the memorandum were optional on the part of principals. On Motion of Williams, the Hearing Officer declared that there was insufficient evidence to establish the allegations of the foregoing charges. That on or about July 11, 1977, the respondent failed to be a witness for the School Board of Dade County which involved the suspension of an employee who was under the direction and control of the Respondent while he was principal at the Primary C Elementary School [sic]. That his refusal to be a witness was without foundation and further, was his duty and responsibility as an employee of the School Board of Dade County. On July 11, 1977, Williams was called to a conference regarding a hearing that was to be held that afternoon, involving another employee of the School Board. Williams went to the conference and became upset because he believed certain questions propounded to him were improper. Williams, however, was neither requested nor directed to be a witness at the hearing to be held later that day. No subpoena was issued to compel Williams' attendance at that hearing. That during the 1978-1979 school year, numerous teachers at the Primary C Elementary School, where the Respondent was assigned as principal, have sought reassignment because of the open criticism and un- warranted harassment by the Respondent. This charge is not substantiated by competent substantial evidence. While the evidence does indicate that Williams had a small number of disagreements with one or two teachers during that school year, the evidence further establishes that the overwhelming majority of the teachers at that school during that school year hold Williams in high regard. There is am absence of evidence to establish that numerous teachers sought reassignment. That on or about November 8, 1978, a principal's meeting was held for the purpose of assisting administrator's review procedures used to remediate professional personnel where performance is deficient and at said meeting, the Respondent acted in a negative and disruptive manner, so as to make the meeting ineffective for all persons concerned. This charge is unsupported by the evidence. The evidence does establish that at the meeting in question, Williams fully participated and asked pertinent, incisive questions of those conducting the meeting. That on or about January 9, 1979, the area superintendant [sic] attempted to have a conference with the Respondent con- cerning specific recommendations for improvement, and at said conference the Respondent was insubordinate, disruptive, hostile and negative toward the area superintendant [sic], in such a manner as to make the meeting an ineffective one, and thus the meeting had to be terminated because of the behavior of the Respondent. At the hearing in this cause, there was made available a complete transcript of the conference held on January 9, 1979, with Williams and the area superintendent. The document, received as Respondent's Exhibit "Y", demonstrates that Williams was neither insubordinate, disruptive, hostile or negative. In fact, the area superintendant terminated the meeting after ascertaining that Williams had no further questions regarding the recommendations for improvement which were given to Williams at the meeting. That in the school year 1969-1970 it was further noted that the Respondent needed improvement in "Human relations" and "Group processes." (As amended at the hearing in this cause.) The Dade County evaluation form for school year 1969-1970 reflects that Williams received an overall score of 4.2 for that school year. This constitutes a satisfactory rating in the Dade County School System. The remarks section says "Needs improvement in human relations and group processes which hopefully he will develop within the year. Otherwise his performance this year has been outstanding." 25. Evaluations for school years 1970-1971, 1971-1972, 1972-1973, 1973- 1974, 1974-1975, 1975-1976, 1976-1977 and 1977-1978, all show satisfactory performance ratings in the areas in question. Furthermore, these ratings reflect that while Williams is not a perfect individual, he is an outstanding educator who has made continued significant contributions to the Dade County School System and to the students under his care.
The Issue The issue for determination is whether Respondent should be suspended, without pay and benefits, and terminated from employment with Petitioner for the offenses set forth in the Amended Administrative Complaint.
Findings Of Fact Ms. Maynard has a Bachelor of Science degree in Education (K-6) and a Master of Arts degree in Teaching (Special Education). Her prior teaching experience includes teaching in the United States, Korea, and Japan. Ms. Maynard began her employment with the School Board as a substitute teacher. She was a substitute teacher for approximately six years. In the Summer of 2004, Ms. Maynard was hired to teach at the Pompano Beach Elementary School (Pompano Beach Elementary). However, Pompano Beach Elementary had over-hired, and she was surplused-out to Cypress Elementary School (Cypress Elementary). For the 2004-2005 school year, Ms. Maynard began at Cypress Elementary as a kindergarten teacher. For the 2005-2006 school year, Ms. Maynard was reassigned as an elementary teacher at Cypress Elementary. The parties agree that the relevant time period in the instant case is the 2005-2006 and 2006-2007 school years. No dispute exists that, at all times material hereto, Ms. Maynard was an instructional employee, a third grade teacher, with the School Board at Cypress Elementary. On April 7, 2006, Ms. Maynard received a written reprimand from Cypress Elementary's Assistant principal, Barbara Castiglione (now, Barbara Castiglione-Rothman). The basis for the disciplinary action was Ms. Maynard's failure, twice, to comply with a directive from Ms. Castiglione--Ms. Maynard was requested to report to an academic meeting with Ms. Castiglione. Among other things, Ms. Maynard was advised that her failure to perform to the standards established for the effective and productive performance of her job duties would result in further disciplinary action up to and including a recommendation for termination of employment. A copy of the written reprimand was provided to Ms. Maynard. Ms. Maynard contended that she was not refusing to attend the meetings but wanted to meet with Ms. Castiglione when a witness of her own choosing could attend. Ms. Maynard wanted a witness to be present at the meetings because she viewed the meetings as disciplinary meetings even though Ms. Castiglione indicated that the meetings were not disciplinary meetings. Additionally, on April 7, 2006, Ms. Maynard made a written request for a transfer from Cypress Elementary. The type of transfer requested by Ms. Maynard was "Regular."2 Cypress Elementary's principal, Louise Portman, signed the request. The principal's signature, as well as the requester's signature, was required. No transfer occurred. PMPs During the 2006-2007 School Year Through School Board policy, implementing a Legislative mandate, all teachers at Cypress Elementary were required to develop an individualized progress monitoring plan (PMP) for each student, who was deficient in reading, in consultation with the student's parent(s). Data for the PMP were collected through reading assessments at the beginning of the school year to establish a student's reading level. The appropriate reading program for the student would be decided upon using the data. Also, who was going to teach the reading program would be decided. The PMP, among other things, identified the student's reading deficiency and set forth the plan to remediate the deficiency and enhance the student's achievement in reading, which included the proposed supplemental instruction services that would be provided to the student. PMPs were generated usually two to three weeks after the beginning of the school year. A copy of the PMP was provided to the student's parent(s). The PMP was referred to as a "living, fluid document." It was not unusual for PMPs to reflect interventions not being used at the time, i.e., it was permissible for PMPs to reflect interventions that were to be used during the school year. Further, the wording current on a PMP referred to interventions during the current school year, not necessarily at that time. PMPs were modified throughout the school year on an as needed basis depending upon a student's progress. On or about September 29, 2006, Ms. Portman advised Ms. Maynard that Ms. Maynard's PMPs must be deleted because the interventions listed on the PMPs were not on the Struggling Readers Chart and were, therefore, invalid. The Struggling Readers Chart was developed by the Florida Department of Education (DOE) and contained interventions approved by DOE. Cypress Elementary had a Reading Coach, Jennifer Murphins. Ms. Murphins advised Ms. Maynard that, in order to delete the PMPs, a list of the students, who were on the PMPs, was needed so that Ms. Murphins could provide the names to the person in the school district who was authorized to delete the PMPs. Further, Ms. Murphins advised Ms. Maynard that, once the PMPs were deleted, Ms. Maynard could input valid interventions for the students. The School Board's Curriculum Administrator, Mark Quintana, Ph.D., was the person who was designated to delete PMPs. It was not unusual for Dr. Quintana to receive a telephone call from a school to delete information from PMPs-- the request must originate from the school. Ms. Maynard resisted the deletion of the PMPs and refused to delete them time and time again. She suggested, instead, not deleting the PMPs, but preparing updated PMPs and sending both to the students' parents. Her belief was that she could not put proposed interventions on the PMPs, but that she was required to only include interventions that were actually being used with the students at the time. Even though Ms. Maynard was advised by Ms. Portman that proposed interventions could be included on PMPs, Ms. Maynard still refused to provide Ms. Murphins with the list of the students. Furthermore, Ms. Maynard insisted that including interventions not yet provided, but to be provided, on the PMPs was contrary to Florida's Meta Consent Agreement. She had not read the Meta Consent Agreement and was unable to provide Ms. Portman with a provision of the Meta Consent Agreement that supported a contradiction. Ms. Portman directed Ms. Murphins to contact Dr. Quintana to delete the PMPs for Ms. Maynard's students. Ms. Murphins did as she was directed. The PMPs were deleted. On or about October 5, 2006, Ms. Maynard notified Ms. Portman by email that a complaint against Ms. Portman was filed by her with DOE regarding, among other things, the changing of the PMPs and the denying to her students equal access to the reading curriculum and trained professionals. On or about October 30, 2006, Ms. Castiglione sent a directive by email to all teachers regarding, among other things, placing PMPs and letters to parents in the students' report card envelopes. Ms. Maynard refused to comply with Ms. Castiglione's directive because, among other things, the students' PMPs for Ms. Maynard had been deleted and to rewrite the PMPs with interventions that were not actually used by the students was considered falsifying legal documents by Ms. Maynard. On or about October 31, 2006, Ms. Portman directed Ms. Maynard to rewrite the PMPs. Ms. Maynard continued to refuse to obey Ms. Portman's directive. Around November 2006, Ms. Maynard lodged "concerns" about Ms. Portman with the School Board's North Area Superintendent, Joanne Harrison, Ed.D., regarding the PMPs and the instruction of English Language Learners (ELL). Dr. Harrison requested Dr. Quintana and Sayra Hughes, Executive Director of Bilingual/Foreign Language/ESOL Education, to investigate the matter. Dr. Quintana investigated and prepared the report on the PMP concerns, which included findings by Dr. Quintana as to Ms. Maynard's concerns. Ms. Hughes investigated and prepared the report on the ELL concerns, which included findings by Ms. Hughes as to Ms. Maynard's concerns. Dr. Harrison provided a copy of both reports to Ms. Maynard. Included in the findings by Dr. Quintana were: (a) that a school's administration requesting the deletion of PMPs was appropriate; (b) that PMPs are intended to document support programming that was to occur during the school year; (c) that including a support program that was not initially implemented, but is currently being implemented, is appropriate; and (d) that the School Board should consider revising the parents' letter as to using the term "current" in that current could be interpreted to mean the present time. Also, included in the findings by Dr. Quintana were: (a) the principal's direction to the teachers, as to the deadline for sending PMPs home by the first quarter report card, was equivalent to the School Board's deadline for sending PMPs home; (b) teacher signatures were not required on PMPs; (c) the principal has discretion as to whether to authorize the sending home of additional PMPs and, with the principal's consent, PMPs can be modified and sent home at any time throughout the school year; and (d) Ms. Maynard completed all of her students' PMPs. Ms. Maynard's concerns regarding ELLS were that Ms. Portman was denying ELLs equal access and had inappropriately adjusted Individual Reading Inventories (IRI) scores of ELLs. Ms. Hughes found that Ms. Maynard only had allegations or claims, but no documentation to substantiate the allegations or claims. As a result, Ms. Hughes concluded that Ms. Portman had committed no violations. As a result of the investigation by Dr. Quintana and Ms. Hughes, Dr. Harrison determined and advised Ms. Maynard, among other things, that no violations had been found in the areas of PMP process, management or implementation and students' equal access rights and that the investigation was officially closed and concluded. Further, Dr. Harrison advised Ms. Maynard that, should additional concerns arise, Ms. Portman, as principal, was the first line of communication and that, if concerns or issues were not being resolved at the school level, the School Board had a process in place that was accessible. Ms. Maynard admits that she was not satisfied with the determination by Dr. Harrison. Ms. Maynard does not dispute that the deleting of the PMPs were directives from Ms. Portman and that Ms. Portman had the authority to give directives. Ms. Maynard disputes whether the directives were lawful directives and claims that to change the PMPs as directed would be falsifying the reading materials used by her students and, therefore, falsifying PMPs. A finding of fact is made that the directives were reasonable and lawful. Interaction with Students and Parents Ms. Maynard's class consisted of third graders. In addition to reading deficiencies indicated previously, some of her students also had behavioral issues. Ms. Maynard was heard by staff and teachers yelling at her students. For instance, the Media Specialist, Yvonne "Bonnie" Goldstein, heard Ms. Maynard yelling at her (Ms. Maynard's) students. The Media Center was across the hall from Ms. Maynard's classroom and had no doors. On one occasion, Ms. Goldstein was so concerned with the loudness of the yelling, she went to Ms. Maynard's room to determine whether something was wrong; Ms. Maynard assured her that nothing was wrong. Paraprofessionals working in the cafeteria have observed Ms. Maynard yelling at her students. Some teachers reported the yelling to Ms. Portman in writing. The Exceptional Student Education (ESE) Specialist and Administrative Designee, Marjorie DiVeronica, complained to Ms. Portman in writing regarding Ms. Maynard yelling at her students. A Haitian student was in Ms. Maynard's class for approximately two weeks during the beginning of the 2006-2007 school year. The student was not performing well in school. The student's father discussed the student's performance with Ms. Maynard. She indicated to the father that Ms. Portman's directives to teachers, regarding reading services, i.e., PMPs, had negatively impacted his son's performance. Ms. Maynard assisted the father in preparing a complaint with DOE, dated October 12, 2006, against Ms. Portman. Among other things, the complaint contained allegations against Ms. Portman regarding a denial of equal access to trained teachers and the reading curriculum in violation of Florida's Meta Consent Agreement and the Equal Education Opportunity Act. Ms. Portman was not aware that the parent had filed a complaint against her with DOE. Additionally, on October 16, 2006, Ms. Portman held a conference with the Haitian parent. Among other things, Ms. Portman discussed the reading services provided to the parent's child by Cypress Elementary. Ms. Portman provided a summary of the conference to Ms. Maynard. Ms. Maynard responded to Ms. Portman's summary on that same day. In Ms. Maynard's response, she indicated, among other things, that Ms. Portman did not give the Haitian parent accurate information regarding the child. Interaction with Staff (Non-Teachers) A system of awarding points to classes was established for the cafeteria at Cypress Elementary. A five-point system was established in which classes were given a maximum of five points daily. Classes entered in silence and departed in silence. Points were deducted if a class did not act appropriately. An inference is drawn and a finding of fact is made that the five-point system encouraged appropriate conduct by students while they were in the cafeteria. The cafeteria was overseen by Leonor Williamson, who was an ESOL paraprofessional, due to her seniority. The paraprofessionals were responsible for the safety of the students while the students were in the cafeteria. The paraprofessionals implemented the five-point system and came to Ms. Williamson with any problems that they had involving the cafeteria. On or about December 11, 2006, Ms. Maynard's students entered the cafeteria and were unruly. Ms. Williamson instructed the paraprofessional in charge of the section where the students were located to deduct a point from Ms. Maynard's class. Ms. Maynard was upset at Ms. Williamson's action and loudly expressed her displeasure to Ms. Williamson, demanding to know the basis for Ms. Williamson's action. Ms. Maynard would not cease complaining, so Ms. Williamson eventually walked away from Ms. Maynard. Ms. Williamson was required to oversee the safety of the students in the cafeteria and, in order to comply with this responsibility, she had to remove herself from the presence of Ms. Maynard. Ms. Maynard also complained to another teacher, who was attempting to leave the cafeteria with her own students. Additionally, the lunch period for each teacher's class is 30 minutes. On that same day, Ms. Maynard took her class from one section to another section in the cafeteria to serve ice cream to the students. As a result, Ms. Maynard surpassed her lunch period by approximately ten minutes and, at the same time, occupied another class' section. Ms. Williamson viewed Ms. Maynard's conduct as unprofessional during the incident and as abusing the scheduled time for lunch. On or about December 12, 2006, Ms. Williamson notified Ms. Portman about the incidents and requested Ms. Portman to remind Ms. Maynard of the cafeteria workers' responsibility to the students and the lunch period set-aside for each class. The incident on or about December 11, 2006, was not the first time that Ms. Williamson had instructed paraprofessionals to deduct points from Ms. Maynard's class. Each time points were deducted, Ms. Maynard became upset and loudly expressed her displeasure to Ms. Williamson. Ms. Williamson felt intimidated by Ms. Maynard. Also, paraprofessionals had deducted points from Ms. Maynard's class on their own accord without being directed to do so by Ms. Williamson. Whenever the deductions occurred, Ms. Maynard expressed her displeasure with the paraprofessionals' actions and often yelled at them in the presence of students and teachers. Another cafeteria situation occurred in December 2006. A paraprofessional, who was in charge of the section where Ms. Maynard's students ate lunch, observed some of the students not conducting themselves appropriately. The paraprofessional decided to deduct one point from Ms. Maynard's class and to indicate to Ms. Maynard why the point was deducted. Furthermore, the paraprofessional decided that the conduct did not warrant a disciplinary referral. Upon becoming aware of the incident, Ms. Maynard, who did not witness the conduct, wrote disciplinary referrals on the students involved and submitted them to Ms. Castiglione. The policy was that a referral could be written only by the staff person who observed the incident. Ms. Castiglione discussed the incident with the paraprofessional who indicated to Ms. Castiglione that the conduct did not warrant a disciplinary referral. As a result, Ms. Castiglione advised Ms. Maynard that, based upon the paraprofessional's decision and since Ms. Maynard did not witness the incident, Ms. Maynard's referrals would not be accepted and the matter was closed. Ms. Maynard did not agree with the paraprofessional's decision. Ms. Maynard approached the paraprofessional with disciplinary referrals on the students and presented the referrals and strongly encouraged the paraprofessional to sign the referrals. The paraprofessional refused to sign the referrals. Interaction with Staff (Teachers and Administrators) Safety procedures for the Media Center were established by the Media Specialist, Yvonne "Bonnie" Goldstein. At one point in time, Ms. Maynard wanted to bring all of her students to Distance Learning. Because of safety concerns, Ms. Goldstein advised Ms. Maynard that all of her students could not attend at the same time. However, Ms. Maynard brought all of her students anyway. Ms. Goldstein had no choice but to preclude Ms. Maynard from entering the Media Center. Additionally, at another point in time, Ms. Maynard requested, by email, that Ms. Goldstein provide all of her (Ms. Maynard's) students with New Testament Bibles. That same day, Ms. Goldstein advised Ms. Maynard that only two Bibles were in the Media Center and, therefore, the request could not be complied with. Disregarding Ms. Goldstein's reply, Ms. Maynard sent her students to the Media Center that same day in twos and threes, requesting the New Testament Bibles. When the two Bibles on-hand were checked-out, Ms. Goldstein had no choice but to offer the students alternative religious material. During 2005-2006 and 2006-2007, Terri Vaughn was the Team Leader of the third grade class. As Team Leader, Ms. Vaughn's responsibilities included being a liaison between team members and the administration at Cypress Elementary. Ms. Vaughn's personality is to avoid confrontation. Ms. Vaughn had an agenda for each team meeting. During team meetings, Ms. Maynard would deviate from the agenda and discuss matters of her own personal interest, resulting in the agenda not being completed. Also, Ms. Maynard would occasionally monopolize team meetings. Additionally, in team meetings, Ms. Maynard would indicate that she would discuss a problem student with parents who were not the student's parents. As time progressed, during team meetings, Ms. Maynard would engage in outbursts. She would become emotional on matters and raise her voice to the point of yelling. Also, it was not uncommon for Ms. Maynard to point her finger when she became emotional. At times, Ms. Maynard would have to leave the meetings and return because she had begun to cry. Additionally, at times after an outburst, Ms. Maynard would appear as if nothing had happened. Further, during team meetings, Ms. Maynard would excessively raise the subject of PMPs and accuse Ms. Portman of directing her to falsify PMPs or Title I documents. Ms. Vaughn did not report Ms. Maynard's conduct at team meetings to Ms. Portman. However, a written request by a majority of the team members, who believed that the team meetings had become stressful, made a request to the administration of Cypress Elementary for a member of the administration to attend team meetings; their hope was that an administrator's presence would cause Ms. Maynard to become calmer during the team meetings. An administrator began to attend team meetings. Marjorie DiVeronica, an Exceptional Student Education (ESE) Specialist, was an administrative designee, and Ms. Portman designated Ms. DiVeronica to attend the team meetings. Ms. DiVeronica would take notes, try to keep meetings moving, and report to Ms. Portman what was observed. Discussions were stopped by Ms. DiVeronica, and she would redirect the meetings to return to the agenda. Even with Ms. DiVeronica's presence, Ms. Maynard would raise her voice. At one team meeting attended by Ms. Portman, Ms. Maynard would not stop talking and the agenda could not move. Ms. Portman requested Ms. Maynard to stop talking, but Ms. Maynard would not stop. Ms. Portman placed herself in close proximity to Ms. Maynard in order to defuse the situation and raised her voice in order to get Ms. Maynard's attention. Ms. Portman dismissed the meeting. Additionally, at a team meeting, Ms. Maynard had become emotional. Ms. Castiglione was in attendance at that meeting. Ms. Maynard raised her voice and was shouting and yelling and pointing her finger at Ms. Castiglione. Ms. Maynard continued her conduct at the team meetings no matter whether Ms. Portman, Ms. Castiglione, or Ms. DiVeronica attended the meetings. Outside of team meetings, Ms. Vaughn reached the point that she avoided contact with Ms. Maynard due to Ms. Maynard's constantly complaining of matters that were of her (Ms. Maynard's) own personal interest, which resulted in long conversations. Ms. Vaughn's classroom was next to Ms. Maynard's classroom. A closet, with a desk in it, was in Ms. Vaughn's room. At least two or three times, in order to complete some work, Ms. Vaughn went into the closet and closed the door. Another team member, Elizabeth Kane, also made attempts to avoid Ms. Maynard. Ms. Kane viewed Ms. Maynard as making the team meetings stressful. Also, Ms. Kane was uncomfortable around Ms. Maynard due to Ms. Maynard's agitation and, furthermore, felt threatened by Ms. Maynard when Ms. Maynard became agitated. Additionally, Ms. Kane made a concerted effort to avoid Ms. Maynard outside of team meetings. Ms. Kane would "duck" into another teacher's classroom or into a stall in the bathroom to avoid Ms. Maynard. Barbara Young, a team member, tried to be someone to whom Ms. Maynard could come to talk. Ms. Young was never afraid of or felt threatened by Ms. Maynard. Further, regarding the cafeteria incident in December 2006, which Ms. Maynard did not witness, Ms. Maynard did not allow the incident to end with Ms. Castiglione's determination to agree with the paraprofessional's decision to not issue disciplinary referrals. Ms. Maynard, firmly believing that Ms. Castiglione's action was unfair, openly disagreed with the decision in the presence her (Ms. Maynard's) students and strongly encouraged some of the students to go to Ms. Castiglione and protest Ms. Castiglione's determination. Some of the students went to Ms. Castiglione regarding her disciplinary determination. Ms. Castiglione explained her determination to the students, including the process and the reasoning why she did what she did. The students were satisfied with the determination after hearing Ms. Castiglione's explanation. Further, the students indicated to Ms. Castiglione that they had no desire to go to her, but Ms. Maynard wanted them to do it. Ms. Maynard's action had undermined Ms. Castiglione's authority with the students. LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor, never felt threatened by Ms. Maynard or viewed Ms. Maynard as being hostile towards her. However, Ms. Maynard did make her feel uncomfortable. A second grade teacher, Paja Rafferty, never felt threatened by Ms. Maynard. Excessive Emails Communication thru emails is the standard operating procedure at Cypress Elementary. However, Ms. Maynard engaged in excessive emails. Ms. Maynard's emails were on relevant areas. However, she would not only send the email to the staff member, whether teacher or administrator, who could directly respond to her, but would copy every teacher and administrator. This process and procedure used by Ms. Maynard resulted in massive emails being sent to staff who might or might not have an interest in the subject matter. One such staff person, who took action to stop receiving the emails, was Ms. Kane. Ms. Kane was inundated with Ms. Maynard's emails regarding matters on which Ms. Kane had no interest or concern. To stop receiving the emails, Ms. Kane sent Ms. Maynard an email, twice, requesting that Ms. Maynard remove her (Ms. Kane) from the copy list. However, Ms. Maynard did not do so. Due to the massive number of emails sent to Ms. Portman by Ms. Maynard, a significant portion of Ms. Portman's time was devoted to responding to the emails. Ms. Portman had less and less time to devote to her responsibilities as principal of Cypress Elementary. Eventually, Ms. Portman was forced to curtail Ms. Maynard's emails. None of Ms. Maynard's emails threatened teachers, staff, or students. Additional Directives During the time period regarding the PMPs, Ms. Portman became concerned that the parents of Ms. Maynard's students were being misinformed by Ms. Maynard as to the students' performance and as to Cypress Elementary and Ms. Portman addressing the students' performance. On November 3, 2006, Ms. Portman held a meeting with Ms. Maynard. Also, in attendance were Ms. Castiglione and Patricia Costigan, Broward Teachers Union (BTU) Steward. During the meeting, among other things, Ms. Portman directed Ms. Maynard not to have conferences with a parent unless an administrator was present, either Ms. Portman or Ms. Castiglione, in order to assure that parents were not misinformed. A summary of the meeting was prepared on November 6, 2006. A copy of the summary was provided to Ms. Maynard and Ms. Costigan. Subsequently, Ms. Portman received a letter from a parent dated December 20, 2006. The parent stated, among other things, that the parent had approximately a two-hour telephone conversation, during the evening of December 19, 2006, with Ms. Maynard about the parent's child, who was a student in Ms. Maynard's class. Further, the parent stated that her son was referred to by Ms. Maynard as a "fly on manure." Even though Ms. Maynard denies some of the statements attributed to her by the parent and the time span of the telephone conversation, she does not deny that she had the telephone conversation with the parent. On December 20, 2006, Ms. Portman and Ms. Castiglione went to Ms. Maynard's classroom to remind Ms. Maynard of the directive. Ms Maynard was not in her classroom but was in another teacher's room, Barbara Young, with another teacher. Ms. Portman requested Ms. Maynard to come into Ms. Maynard's classroom so that she and Ms. Castiglione could talk with Ms. Maynard out of the presence of the other teachers. Ms. Maynard refused to leave Ms. Young's classroom indicating that whatever had to be said could be said in front of everyone, in front of witnesses. Ms. Portman, complying with Ms. Maynard's request, proceeded to remind Ms. Maynard of the directive to not conference with parents unless an administrator was present. Ms. Maynard became very agitated and yelled at them, indicating that she (Ms. Maynard) wanted what was said in writing and that she (Ms. Maynard) was not going to comply with the directive. Shortly before Winter break, on or about December 21, 2006, in the morning, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 10, 2006, regarding insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all contact with parents" until the meeting was held. Later in the afternoon, after the administrative office was closed, Ms. Maynard returned to Ms. Portman's office. Ms. Maynard confronted Ms. Portman and Ms. Castiglione about the notice, wanting to know what it was all about. Ms. Maynard was very agitated and emotional, raising her voice and pointing her finger. Ms. Portman indicated to Ms. Maynard that the requirement was only to provide the notice, with the meeting to be held later. Ms. Portman asked Ms. Maynard several times to leave because the office was closed; Ms. Maynard finally left. After Ms. Maynard left Ms. Portman's office, Ms. Portman could hear Ms. Maynard talking to other staff. Ms. Portman was very concerned due to Ms. Maynard's agitation and conduct. Ms. Portman contacted the School Board's Professional Standards as to what to do and was told to request all employees, except day care, to leave. Ms. Portman did as she was instructed by Professional Standards, getting on the intercom system and requesting all employees, except for day care, to leave, not giving the employees the actual reason why they were required to leave. Unbeknownst to Ms. Portman, Ms. Maynard had departed Cypress Elementary before she (Ms. Portman) instructed the employees to leave. Regarding the afternoon incident, Ms. Maynard felt "helpless" at that point. She had been informed by Professional Standards to go to administration at Cypress Elementary with her concerns, who was Ms. Portman. Ms. Maynard viewed Ms. Portman as the offender, and, therefore, she was being told to go to offender to have her concerns addressed. On January 9, 2007, a Child Study Team (CST) meeting was convened to address the academic performance of a few of Ms. Maynard's students. Ms. Maynard had referred the students to the CST. The CST's purpose was to provide support for the student and the teacher by problem-solving, using empirical data to assist with and improve a child's academic performance and behavior, and making recommendations. No individual member can override a team's recommendation, only a principal could do that. On January 9, 2007, the CST members included, among others, Ms. DiVeronica, who was the CST's leader; Miriam Kassof, School Board Psychologist; and LaShawn Smith-Settles, Cypress Elementary's Guidance Counselor. Also, in attendance were Ms. Maynard and Ms. Castiglione, who, at that time, was an intern principal. During the course of the meeting, Ms. Maynard diverted the discussion from the purpose of the meeting to her wanting two of the students removed from her class. She began discussing the safety of the other students in the class, which was viewed, at first, as being well-meaning, however, when she insisted on the removal of the two students, she became highly emotional, stood-up, and was yelling. Members of the CST team attempted to de-escalate the situation, but Ms. Maynard was not willing to engage in problem solving and her actions were counterproductive. Due to Ms. Maynard's constant insistence on discussing the removal of the students from her class, the CST was not able to meet its purpose within the time period set- aside for the meeting. However, before the CST meeting ended, one of the recommendations made was for Ms. Maynard to collect daily anecdotal behavioral notes regarding one of the students and for the behavioral notes to be sent home to the student's parent. Ms. Castiglione gave Ms. Maynard a directive that, before the behavioral notes were sent home to the parent, the behavioral notes were to be forwarded to Ms. Castiglione for review and approval. Ms. Maynard resisted preparing behavioral notes, expressing that that plan of action would not help the situation. The CST members viewed Ms. Maynard's conduct as being unproductive, inappropriate, and unprofessional. On January 10, 2007, a pre-disciplinary meeting was held regarding Ms. Portman considering disciplinary action against Ms. Maynard for insubordination. Attendees at the meeting included Ms. Portman; Ms. Castiglione (at that time intern principal); Ms. Maynard; Jacquelyn Haywood, Area Director; Cathy Kirk, Human Resources; and Andrew David, Attorney for Ms. Maynard. The basis for the insubordination was Ms. Maynard's refusal to comply with Ms. Portman's directive for Ms. Maynard not to conference with parents unless an administrator was present. Ms. Portman pointed out that Ms. Maynard had a telephone conversation with a parent, regarding the parent's child, on December 19, 2006, without an administrator being present and showed Ms. Maynard the letter written by the parent to Ms. Portman, dated December 20, 2006. Ms. Maynard admitted only that she had the telephone conversation. Ms. Portman asked Ms. Maynard to provide a compelling reason as to why the disciplinary action should not be taken; Ms. Maynard did not respond. Ms. Portman reiterated the directive and advised Ms. Maynard that a letter of reprimand would be issued. A summary of the pre-disciplinary meeting was prepared. Ms. Maynard was provided a copy of the summary. On January 17, 2007, a written reprimand was issued by Ms. Portman against Ms. Maynard for failure to adhere to the administrative directive of not having a parent conference unless an administrator was present. The written reprimand stated, among other things, that Ms. Maynard had a parent's conference on the telephone with a student's parent without an administrator being present and that Ms. Maynard failed to present a compelling reason as to why no disciplinary action should be taken. Furthermore, the written reprimand advised Ms. Maynard that any further failure to perform consistent with the standards established for the effective and productive performance of her job duties, as a third grade teacher, would result in further disciplinary action up to and including a recommendation for termination of employment. Ms. Maynard received a copy of the written reprimand. After the Written Reprimand of January 17, 2007 Also, on January 17, 2007, Ms. Portman held a meeting with Ms. Maynard which was not a disciplinary meeting, but was a meeting for Ms. Portman to discuss her concerns and job expectations with Ms. Maynard. In addition to Ms. Portman and Ms. Maynard, attendees at the meeting included Ms. Castiglione; Jacqueline Haywood, Area Director; Cathy Kirk, Human Resources; and Mary Rutland, BTU Steward. Ms. Portman discussed five concerns and issued five directives. The first concern of Ms. Portman was Ms. Maynard's unprofessional behavior. The examples provided by Ms. Portman were Ms. Maynard's (a) yelling at paraprofessional staff in the cafeteria; (b) yelling at administrators, referencing the incident on December 20, 2006; and (c) continuing to publicly accuse Cypress Elementary's administrators of falsifying documents after an investigation had determined the accusation to be unfounded. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate behavior. Ms. Portman's second concern was unprofessional and inappropriate comments. The examples provided by Ms. Portman were Ms. Maynard's (a) indicating on December 20, 2006, while she was in Ms. Young's room, that she would not comply with the directives of which she was reminded by Ms. Portman; (b) speaking to a parent and referring to the parent's child as a "fly on manure"; and (c) telling parents, during conferences, that there was a problem at Cypress Elementary. Further, the directive that Ms. Portman issued to Ms. Maynard was to cease and desist all unprofessional and inappropriate comments. Additionally, Ms. Portman reminded Ms. Maynard that all notes were required to be submitted to administration for review no later than 1:00 p.m., except for student daily behavioral notes, which were to be submitted at 1:30 p.m. The third concern of Ms. Portman was continued dialogue of PMPs and ESOL issues. Ms. Portman indicated that the district had reviewed Ms. Maynard's issues and concerns and had responded to them. Further, the directive that Ms. Portman issued to Ms. Maynard was that the said issues were considered closed and that, if Ms. Maynard wished to pursue the said issues, she should contact her attorney. Ms. Portman's fourth concern was unmanageable emails sent by Ms. Maynard. The example provided by Ms. Portman was that she had received over 200 emails from Ms. Maynard. Ms. Portman indicated that the procedure that Ms. Maynard was required to follow when she (Ms. Maynard) had issues or concerns that needed to be addressed was (a) make an appointment with the administrator through the confidential secretary, identifying that person; and (b) provide the confidential secretary with the issue in writing. Only when (a) and (b) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue at the appointment time. Further, the directive that Ms. Portman issued to Ms. Maynard was that Ms. Maynard would cease and desist sending issues via emails and that conferences would be scheduled per the procedure outlined. The fifth concern of Ms. Portman's was protocol compliance. Ms. Portman indicated that the proper procedure for Ms. Maynard to adhere to when Ms. Maynard had a complaint or concern was to first, contact her (Ms. Maynard's) supervisor, not the area office, wherein Ms. Maynard would be provided with an opportunity to meet with an administrator. Additionally, as to meeting with an administrator, (a) Ms. Maynard would meet with either Ms. Portman or Ms. Castiglione; (b) an appointment with the administrator would be made through the confidential secretary, identifying that person; (c) Ms. Maynard would provide the confidential secretary with the issue or concern in writing; (d) only when (b) and (c) were complied with, would either Ms. Portman or Ms. Castiglione meet with Ms. Maynard, during Ms. Maynard's planning time, on the issue or concern at the appointment time; (e) administration would address the issue or concern and after the issue or concern had been presented to administration, Ms. Maynard was to consider the issue or concern closed. Further, the directive that Ms. Portman gave to Ms. Maynard was that Ms. Maynard was to comply with the protocol outlined for all of her concerns. Moreover, Ms. Portman indicated that a failure by Ms. Portman to follow all of the directives would result in disciplinary action up to and including termination from employment. A summary of the meeting of concerns and job expectations was prepared. On January 18, 2007, Ms. Portman noticed Ms. Maynard by letter that a pre-disciplinary meeting would be held on January 29, 2007, regarding gross insubordination by Ms. Maynard. Among other things, the notice directed Ms. Maynard to "cease and desist all communication with parents both written and oral" until the meeting was held. The notice was hand-delivered to Ms. Maynard at Cypress Elementary. On or about January 22, 2007, Ms. Portman held a meeting to develop a strategic plan to help motivate one of Ms. Maynard's students, who was in foster care, in the areas of academics and behavior. In addition to Ms. Portman, attendees at the meeting included, among others, Ms. Castiglione; Ms. Smith-Settles; and the student's Guardian Ad-Litem. During the meeting, the Guardian Ad-Litem indicated that Ms. Maynard had telephoned the student's foster parent, engaged in more than a 45-minute conversation, and, during the telephone conversation, made negative comments about Cypress Elementary. On January 23, 2007, Ms. Portman provided Ms. Maynard with a Notice of Special Investigative/Personnel Investigation (Notice) by hand-delivery. The Notice stated, among other things, that the investigation regarded allegations that Ms. Maynard was creating a hostile environment. The Notice directed Ms. Maynard not to engage anyone, connected with the allegations, in conversation regarding the matter and advised that a violation of the directive could result in disciplinary action for insubordination. Further, the Notice advised Ms. Maynard that, if she had any question regarding the status of the investigation, she should contact Joe Melita, Executive Director of Professional Standards and Special Investigative Unit, providing his contact telephone number. The Notice was provided to Ms. Maynard as a result of Ms. Portman making a request for the investigation on January 17, 2007. The request indicated that the allegations were: (1) yelling at paraprofessional staff in the cafeteria; (2) yelling at both the principal and assistant principal on December 20, 2006; (3) accusing the principal of falsifying documents even after the school district investigation found the accusation unwarranted; (4) not complying with directives; and accusing the principal of lying to a parent at a conference. The pre-disciplinary meeting noticed for January 29, 2007, was not held due to the placing of Ms. Maynard under investigation. On or about January 25, 2007, Ms. Maynard was temporarily reassigned to the School Board's Textbook Warehouse by Mr. Melita. Temporary reassignment is standard operating procedure during an investigation. Teachers are usually temporarily reassigned to the Textbook Warehouse. Because of the investigation, Ms. Maynard could not return to Cypress Elementary or contact anyone at Cypress Elementary without Mr. Melita's authorization. The SIU investigator assigned to the case was Frederick Davenport. On August 14, 2007, Investigator Davenport went to the Textbook Warehouse to serve a notice of reassignment on Ms. Maynard from Mr. Melita that her reassignment was changed immediately and that she was reassigned to Crystal Lake Community Middle School. The notice of reassignment required Ms. Maynard's signature. Investigator Davenport met with Ms. Maynard in private in the conference room and advised her of his purpose, which was not to perform any investigative duties but to serve the notice of reassignment and obtain her signature. Ms. Maynard refused to sign the notice of reassignment because it was not signed by Mr. Melita and left. Investigator Davenport contacted Professional Standards and requested the faxing of an executed notice of reassignment by Mr. Melita to the Textbook Warehouse. Professional Standards complied with the request. Investigator Davenport met again with Ms. Maynard in private in the conference room. Ms. Maynard refused to sign the executed notice of reassignment. She felt threatened by Investigator Davenport and ran from the room into the parking area behind the Textbook Warehouse at the loading dock. A finding of fact is made that Investigator Davenport did nothing that the undersigned considers threatening. Investigator Davenport did not immediately follow Ms. Maynard but eventually went to the steps next to the loading dock, however, he did not approach Ms. Maynard in the parking lot. Ms. Maynard refused to talk with Investigator Davenport, expressing her fear of him, and contacted the Broward County Sheriff's Office (BSO). A BSO deputy came to the parking lot. After Ms. Maynard discussed the situation with the BSO deputy and a friend of Ms. Maynard's, who arrived at the scene, she signed the notice of reassignment. Investigator Davenport delivered the notice of reassignment to Professional Standards. Investigator Davenport completed his investigation and forwarded the complete investigative file and his report to his supervisor for approval. At that time, his involvement in the investigation ended. His supervisor presented the investigation to Professional Standards. On or about September 19, 2007, the Professional Standards Committee found probable cause that Ms. Maynard had created a hostile work environment and recommended termination of her employment. The Flyer On April 27, 2009, a town hall meeting was held by the School Board at the Pompano Beach High School's auditorium. That town hall meeting was one of several being held the same night by the School Board. The process and procedure for the town hall meeting included (a) all persons who wished to speak were required to sign-up to speak and (b), if they desired to distribute documents, prior to distribution, the documents were required to be submitted and receive prior approval. Security was at the auditorium, and Investigator Davenport was one of the security officers. During the town hall meeting, an unidentified man rose from his seat, began to talk out-of-turn and loud, was moving toward the front where School Board officials were located, and was distributing a flyer. The actions of the unidentified man got the attention of Investigator Davenport and caused concern about the safety of the School Board officials. Investigator Davenport and the other security officer approached the unidentified man, obtained the flyer, and escorted him out of the auditorium. Once outside, the unidentified man indicated, among other things, that he had not obtained prior approval to distribute the flyer. The unidentified man did not identify who gave him the flyer. Investigator Davenport observed that the flyer was placed on most of the vehicles in the auditorium's parking lot. Once Investigator Davenport and his fellow security officer were convinced that the unidentified man was not a threat to the School Board officials, they released the unidentified man who left the area. Neither Investigator Davenport nor his fellow security officer saw Ms. Maynard at the town hall meeting or had any indication that she had been there. Neither Investigator Davenport nor his fellow security officer had any indication that Ms. Maynard had requested the man to distribute the flyer. The flyer was signed by Ms. Maynard and dated April 27, 2009. The heading of the flyer contained the following: "PARENTS FOR FULL DISCLOSURE"; an email address; and "PROTECT YOUR CHILDREN." The content of the flyer included statements that Ms. Maynard was a teacher in 2006 at Cypress Elementary and was directed twice by her administrators in emails to falsify Title I documents; that she was directed to mislead parents about materials and services that the students were legally entitled to; that many of the students failed because they were denied the materials and services; that she refused to follow the directives and filed complaints with the proper authorities; that in 2008, Ms. Portman, who gave the directives to Ms. Maynard, was removed from Cypress Elementary, along with Ms. Murphins and Dr. Harrison--the flyer also indicated the new locations of the individuals; that persons, who were interested in learning how to prevent themselves from being misinformed and to protect their children from being denied the materials and services, should contact Ms. Maynard at the email address on the flyer; and that parents who gather together have more power than teachers to influence the school districts. Ms. Maynard had no determinations or proof to support any of the allegations in the flyer, only her belief. Recognizing that the flyer contained statements similar to the statements of his investigative report, Investigator Davenport forwarded the flyer to Mr. Melita. Ms. Maynard admits that she prepared the flyer and signed it. She indicates that an individual who claimed to be a member of the parent group, Parents For Full Disclosure, contacted and met with her. That individual, who also did not reveal her identity, requested Ms. Maynard to prepare the flyer and informed Ms. Maynard that the flyer would be distributed at the town hall meeting. Filing Various Complaints with Investigative Agencies Ms. Maynard filed various complaints with public investigative agencies regarding: harassment during the investigation; minority teachers being investigated, reassigned to the Textbook Warehouse, and not receiving annual evaluations; and the flyer. The public investigative agencies included the FBI, Broward County EEOC, federal EEOC, Florida Public Service Commission, and Florida Commission on Human Relations. No evidence was presented to show that Ms. Maynard was prohibited from filing the complaints. Contract Status At the time of the investigation of Ms. Maynard in January 2007 for creating a hostile work environment, she was under a continuing contract. Further, at the time that Professional Standards determined probable cause, on or about September 19, 2007, that Ms. Maynard had created a hostile work environment, she was under a continuing contract. Ms. Maynard testified that, on November 2, 2007, she received and signed a professional services contract, which the School Board did not refute. A finding of fact is made that, on November 2, 2007, she received and signed a professional services contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: Finding that Doreen Maynard committed misconduct, immorality, and gross insubordination, violating section 1012.33(4)(c), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.001, 6B-1.006, and 6B-4.009(2), (3), and (4); and Suspending Doreen Maynard, without pay and benefits, and terminating her employment. DONE AND ENTERED this 21st day of July, 2011, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2011.
The Issue The issue is whether Ms. Lee's teaching certificate should be revoked because she has been guilty of dishonesty in maintaining student grades and has engaged in a course of conduct which seriously reduced her effectiveness as an employee of the School Board of St. Lucie County, Florida.
Findings Of Fact Cynthia Lee holds a Florida teaching certificate, and has been a teacher for 11 years in the public schools of St. Lucie County. She earned a bachelor's degree in special education for grades kindergarten through 12 and in elementary education, grades 1 through 6. She also has received a Master's degree in administration and supervision from Nova University. During her last year of teaching, Ms. Lee had been transferred to Lakewood Park Elementary School where Allen Edwards was principal and Linda Francine Applebee was an Assistant Principal. She taught a self-contained third grade class. For reasons which were not satisfactorily explained, the school administrators made meticulous notes of observations of Ms. Lee's performance at school. For example, on August 25, 1986, it was recorded that Ms. Lee had an open Bible on a shelf in her classroom, and had assembled her students at 3:00 to wait for the school bus rather than releasing them from the classroom. On August 27, it was recorded that she spoke with students in the suspension room; on August 28, it was recorded that Ms. Lee had not made marks in student folders to indicate their attendance on the first day of class. On September 3, it was documented that she had assembled her students for the reading laboratory at 10:01 a.m, as opposed to 10:05 a.m., and on October 9, it was recorded that Ms. Lee had a cup of something to drink after lunch. Eventually these surveillance notes gave way to more serious confrontations with the administration. In November of 1987, Ms. Lee received a reprimand for returning to her classroom after she had left school one morning because of an eye problem. Appropriate arrangements were made to have a substitute in her classroom for about an hour, because she thought that her visit at the doctor's office would be brief. The assistant principal, Ms. Applebee, then determined to retain the substitute to stay with Ms. Lee's class for the rest of the day, "in the interest of continuity." Ms. Applebee left a message with the doctor's secretary that Ms. Lee should return home after she was finished with her appointment. Ms. Lee did not understand why she had been given permission to leave and return, but then received a message not to return to school while at the doctor's office. She had left items at the school which she would not ordinarily leave overnight. When Ms. Lee returned to school, Ms. Applebee was quite upset, and Ms. Lee thereafter received a reprimand stating that "your return to the classroom after seeing the doctor was a flagrant disregard for the authority of the school administration." This response by the administration to Ms. Lee's return to the campus was petty, and indicative of the administration's general hostility to Ms. Lee. During the school year, Mr. Edwards decided that it would be appropriate to have another teacher assist Ms. Lee with her lesson plans, to help her develop more specific learning objectives for her class. At first, the chairperson of the third grade teachers at the school, Altamese Hilick, assisted Ms. Lee with lesson plans in reading. Later, the district coordinators for mathematics, Alice Hosty, and for language arts, Marsha Cully, came to Ms. Lee's classroom, observed her teaching, and made suggestions for her to improve her classroom management and curriculum. Third grade students at Lakewood Park Elementary School used the mathematics text published by D.C. Heath & Company; pre- and post-tests are coordinated with teaching materials used at the school. Students were given the pre-test before a unit of instruction was given, instructed, and then the post- test was administered. Similar pre- and post-tests were used in the reading and language arts program at the school, based on materials and a text published by Harcourt, Brace, Jovanovich, Inc. The pre- and post-test results were charted on group profile sheets for the entire class, in individual folders for the students and in the students' cumulative records. After the tests were given, Ms. Lee corrected the students' papers by placing Xs on wrong answers and check marks on correct answers. The tests were then placed on a shelf in the back of her classroom in a place that would have been open to anyone who entered the classroom. Teachers or administrators ordinarily were on campus before Ms. Lee arrived in the morning and others would remain after Ms. Lee had left in the afternoon. The door to her classroom was unlocked. Despite the administration's general unfriendliness, Ms. Lee's contention that any alteration of the tests was done to discredit her by someone with access to her classroom, but not by herself, is rejected. Marsha Cully wrote a memorandum to Mr. Edwards on January 29, 1987, explaining that when she had visited Ms. Lee's class, she randomly checked the group profile sheets for the class. The profiles showed that all the students in Ms. Lee's top reading group had scored 100 per cent on each skill and subtest. Ms. Cully's review of the graded tests themselves revealed that Ms. Lee's students had not performed that well. Ms. Hosty submitted a similar memorandum about Ms. Lee's mathematics skills checklist and pre- and post-tests to Mr. Edwards on February 9, 1987, noting that on at least one test paper, an "X" indicating a wrong answer had been whited-out, an answer changed, and a student given a perfect score. Ms. Lee adamantly maintains that she never erased Xs on graded tests to replace them with check marks, changed answers for students by erasing incorrect answers, replaced them with correct answers, or whited-out markings on student test papers. The School Board retained Antonio M. Laurito, a forensic document examiner for the regional crime laboratory at Indian River Community College, to review the tests, Ms. Lee's group profile sheets, individual student records and known samples of her handwriting. Mr. Laurito eschewed reliance on exemplars knowingly prepared for comparison to questioned documents. He concluded that she had changed several of the students' test grades and their scores on school records. Ms. Lillian Newman was retained by Ms. Lee, who reviewed handwriting exemplars which she saw Ms. Lee prepare, with knowledge that the exemplars would be used for comparison with the questioned documents in this case. Ms. Newman also reviewed a large number of Ms. Lee's cancelled checks as additional exemplars. Ms. Newman found the evidence inconclusive on whether the questioned documents were prepared by Ms. Lee. Having carefully considered the testimony of both handwriting experts and the exhibits which they relied on, the opinions expressed by Mr. Laurito are more persuasive, and convincing. Ms. Lee altered the students' work on their tests, and recorded and maintained false test results in student records for the class and for individual students which overstated their achievement. That conduct has seriously reduced her effectiveness as a teacher.
Recommendation It is RECOMMENDED that the teaching certificate of Cynthia June Lee be revoked by the Education Practices Commission for a period of three years, after which she may reapply for a new certificate as provided in Section 231.28(4)(b), Florida Statutes. DONE AND ENTERED this 12th day of June, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th of June, 1989. APPENDIX TO RECOMMENDED ORDER 88-4623 Rulings on Proposed Findings of Fact by the Commissioner of Education Covered in finding of fact 1. Rejected as unnecessary. Covered in finding of fact 4. To the extent necessary, covered in finding of fact 4. Covered in finding of fact 7. Covered in finding of fact 7. Covered in finding of fact 7. Covered in findings of fact 8 and 10. Covered in finding of fact 9. Rejected as subordinate to finding of fact 10. Covered in finding of fact 10. Rulings on Proposed Findings of Facts by Ms. Lee Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 1. To the extent necessary, covered in finding of fact 1. Subordinate to finding of fact 5. Subordinate to finding of fact 5. Covered in finding of fact 5. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 6. Rejected because Ms. Lee's testimony has not been accepted. Covered in finding of fact 6. Implicit in finding of fact 6. Covered in finding of fact 6. Rejected as unnecessary. Covered in finding of fact 6. To the extent necessary, covered in finding of fact 6. To the extent necessary, covered in finding of fact 6. To the extent necessary, covered in finding of fact 6. Covered in finding of fact 6. Rejected as inconsistent with my view of the evidence. Rejected as unnecessary. Rejected as inconsistent with my view of the evidence. Rejected as inconsistent with my view of the evidence. Rejected as inconsistent with my view of the evidence. Rejected as unnecessary. Rejected as subordinate to finding of fact 10. Rejected as unnecessary. These changes were performed by Ms. Lee. 29. Covered in finding of fact 7. Covered in finding of fact 8. Rejected as unnecessary, the exemplars Mr. Larito used were done by Ms. Lee, and his reason for not asking her to execute an exemplar is persuasive. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 9. 35. Covered in finding of fact 9. Covered in finding of fact 9. Rejected as unnecessary. Rejected as unnecessary and subordinate to finding of fact 10. 39.-49. Rejected as unnecessary and subordinate to finding of fact 10. The testimony of Mr. Larito was accepted and more persuasive. Rejected as unnecessary. Rejected as unnecessary. 52.-60. Rejected as unnecessary. 61.-67. Covered in finding of fact 3. 68.-75. Covered in finding of fact 2. COPIES FURNISHED: Martin Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, FL 32399 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, FL 32399 Criag R. Wilson, Esquire Suite 302 215 Fifth Street West Palm Beach, FL 33401 Rev. Cynthia Lee 3201 Boston Avenue Fort Pierce, FL 34950 Leslie Holland, Esquire FEA/United 208 West Pensacola Street Tallahassee, FL 32301 Sydney H. McKenzie, General Counsel Department of Education The Capitol PL-08 Tallahassee, FL 32399-0400 =================================================================
Findings Of Fact At all times pertinent to the allegations treated herein, Respondent, William Wyche, held a Florida Teaching Certificate number 106113, issued on October 29, 1980, covering the area of industrial arts. Respondent applied for a Florida teaching certificate by submitting the required application form and documentation on or about October 20, 1980. At the time of submission, Respondent replied "no" to the question in Section V of the form which asks: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation. . .?" This answer was false in that: On September 20, 1979, respondent was found guilty of driving while his license was suspended, and fined $50.00; On March 20, 1980, Respondent was found guilty of obtaining property by worthless check and fined $25.00; On March 20, 1980, Respondent was found guilty of driving with a suspended license and fined $100.00; On April 2, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00; and, On April 25, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00. On that same date, in a separate case involving an identical charge, adjudication was withheld but Respondent was placed on probation for sixty days. Respondent explains the check charges on the basis that at the time they took place, all within a few weeks of each other, his bank account had been garnished and because of that garnishment, though he had ample funds in his account to honor these checks, the bank did not honor them. There were quite a few checks dishonored for this reason-so many, in fact, that he lost track of some of them and though he redeemed most, he failed to redeem these. As to the convictions for driving with a suspended license, he thought these were minor traffic offenses that did not have to be listed. Respondent was employed as an industrial arts (IA) teacher at Kirby Smith Junior High School (KSJHS) in Jacksonville, Florida during the 1981-82 school year, teaching in the metal shop. During this period, he was evaluated on a regular basis, based on observations and evaluations by other school officials carried on at various times throughout the school year. During these evaluations, such things as classroom conditions, the instructor's presentations, the preparation of lesson plans, and the use of lesson plans as guidelines for in-class instruction were considered. Lonnie W. Davenport was assistant principal for curriculum at KSJHS during this period and had to insure that teaching was taking place properly in both form and substance. To do this, he contacted his teachers daily and also relied on observations such as described above, and reports submitted to him. These reports were regarding such things as student class size, grade reports by teachers, black/white student count in the homerooms, and teachers' lesson plans which were required from each teacher weekly. While he has no formal IA training, he has a lot of experience in the area. Mr. Davenport first took serious note of the Respondent in mid- December, 1981 when he noted that Respondent had not submitted complete lesson plans. There were holes in those submitted relating to time and quality. In addition, the principal had asked him to look into reported irregularities in Respondent's classroom. His examination of Respondent's lesson plans showed that they were inadequate because they: did not conform to the form required; did not cover the subject matter sufficiently; did not follow a time sequence properly; and, were not sufficiently specific. They should have broken down the instruction into segments for skill development on a step-by-step, day-by-day basis. In short, Respondent's plans did not adequately tell what he was intending to do in his classroom. As to Respondent's teaching, Davenport's observation showed that Respondent: had no plans to show what was expected of his students; maintained the shop in a depressing state. (Here, however, it was admitted that this school was old and the shop dingy, and Respondent could not control all of that. However, Respondent's teaching aids, such as posters, which were old, faded, and torn, added to the dinginess.) allowed shop metal to lay around the shop without being placed in stock storage, creating a safety hazard; failed to safeguard and neglected one student's artwork project, and other students' projects were left out and not placed in storage for the next class period; stored a large stack of sheet metal under a work bench with cutting corners end edges protruding (also a safety hazard) allowed equipment which should have been stored to remain out; failed to have safety lines placed on the floor around individual pieces of equipment; failed to insure that soldering forges were properly shielded or securely fastened down; and, failed to post safety rules prominently in the classroom. Respondent contends that he submitted purchase orders requesting corrections be made of these deficiencies. However, with the exception of several orders for paint, some of which may have been used for the safety lines and to brighten up the area, the remainder of the purchase orders he introduced into evidence (Respondent's Composite Exhibit E), were for metal stock and other pieces of new or replacement equipment. There was no evidence of work orders for correction of any of the cited defects. Mr. Davenport's observations as to Respondent's teaching ability were that: He sat at his desk in the classroom while his students were working in the shop behind his back. As a result, students with problems had to come out of the shop to him for help rather than him being available in the shop to help; students were not required to wear safety goggles while operating power equipment nor did Respondent use them while operating the equipment; The student projects assigned or approved by Respondent were too simple and provided no challenge; The quality of the finished product turned out by Respondent's students was poor; Grading of student projects was accomplished on the basis of negotiation with the student and not on accomplishment or work quality; Once the student had completed the basic project, Respondent had no follow-up projects for them to do to use up the remainder of the school year. He, allowing them to occupy themselves with "busy work," showed to Davenport a lack of commitment to planning; Respondent was observed and overheard by Davenport to chastise a student by threatening to destroy the student's project, resulting in failure. This observation, which Respondent admitted to Davenport, is contrary to a school policy which prevents discipline from affecting an academic grade; and, In one particular class observed, Respondent came to class late. He had allowed a student to take roll, a function required of the teacher, and evidence available to Davenport, led him to believe this was a repeated- occurrence; Respondent's absence allowed students to engage in horseplay and rowdy behavior and, even when Respondent came into class, he chastised the wrong student. As to the type of instruction Respondent was observed to give, when a student would bring a project to him and ask a question, he would answer. For the most part, however, he stayed at his desk while the students worked unsupervised in the shop. He showed no initiative and did not even require students to draw plans or prepare material lists before starting work on a project. On one occasion, a student was injured in the shop. Respondent merely washed the injury, wrapped it, and sent the student back to work. Davenport, who observed this incident, told Respondent on the spot that the student should go to the office for first aid and that Respondent should file an accident report on the incident. The report was not filed by Respondent and the student went to the office at the direction of Davenport, not Respondent. This showed a complete lack of concern, according to Davenport. Davenport counseled the Respondent on the above deficiencies but observed no immediate response. He went back to Respondent's class 5-7 times subsequently for follow-up visits of from 20 minutes to an hour in duration and found little change for the better. He repeatedly offered Respondent assistance in any area to correct the shortcomings and got no response until in March, 1982, when Respondent found out he was going to get an unsatisfactory rating. He had been notified in writing, on January 8 end again on February 5, 1982, by his principal Mr. Shanklin, in addition to others, including an evaluation on January 13, 1982 by Mr. Lowell T. Hudson, supervisor of industrial arts for the school board, that his performance was deficient. These warnings could have left little doubt as to the fact his performance was below standard. Finally, on March 15, 1982, Mr. Shanklin rendered an evaluation on Respondent which showed an overall rating of unsatisfactory. Of the six areas rated in classroom management, two were satisfactory and four were unsatisfactory. Of the twenty- one areas rated in teaching effectiveness, one was satisfactory, nine were rated as needing improvement, and eleven were rated unsatisfactory. Seven of the nine areas of professional/personal characteristics were rated satisfactory, one needed improvement, and one was unsatisfactory. Even after this unsatisfactory report, the school administrative staff still tried to help Respondent. They offered him direct help themselves and, in addition, the services of county in service resource personnel to help with planning. Respondent was receptive to this verbally, but never took any steps to use them. As a result, there was no improvement in Respondent's performance but merely a maintenance of the status quo. There were some minor improvements in the condition of the shop but these were merely cosmetic and did not, in any way, relate to the quality of instruction. In Davenport's opinion, Respondent does not meet the minimum standards of competency for teachers nor can he be trained to meet these standards. He is convinced, and it is so found that Respondent's race played no part in the evaluation process. The principal at KSJHS during this period, Mr. Jack H. Shanklin, agreed with and amplified on Davenport's analysis of Respondent. His first difficulty with Respondent came in October, 1981 when the Dean of Girls wrote him a memorandum stating that Respondent had struck a student with a dowel rod. This was not the first instance of Respondent's striking students. Since Respondent was not designated as one to administer corporal punishment, she had previously warned him to send all disciplinary problems to the office. When Shanklin discussed this with Respondent, he said he did it to control the class. Shanklin did not personally evaluate Respondent until early January, 1982, after Davenport's evaluation. Prior to going to the class, he reviewed Respondent's lesson plans and found them to be sketchy. In his opinion, a substitute teacher could not have taught from them and they were "totally unacceptable." When he went into the classroom, he found the Respondent lecturing end he could not understand what Respondent was trying to get across. Respondent mumbled, was hard to understand, and used few, if any, visual aids. It was obvious to him that the students were bored, confused, and were getting nothing from the presentation. In addition, he observed the shop and found it to be dingy, dirty, and a safety hazard. Mr. Shanklin discussed these deficiencies with Respondent a few days later when he gave him the letter regarding the observation. He went into these deficiencies, and recommendations to correct them, quite thoroughly. He made suggestions as to resource people available to help and pointed out specific references to the teachers' manual. In each case, Respondent always indicated he understood and would try to comply. However, in the succeeding month leading up to the February letter, there were no signs of improvement at all nor was there any indication he had utilized the resource people. Follow-up visits to the classroom showed no change and no indication Respondent was getting anything across to the students. After the February letter was given to Respondent by Mr. Shanklin personally, they had a conference in which Shanklin discussed Respondent's deficiencies and he was told what he had to change to get a favorable evaluation. The most critical areas for improvement identified were: lesson plans safety conditions, and classroom appearance, as well as Respondent's personal untidy and nonprofessional appearance. After this discussion, Shanklin made several visits to Respondent's classroom prior to the March evaluation and did note some improvements in classroom appearance and safety, but not in lesson planning or teaching. Even after the March evaluation, up to the end of the school term, he noted no improvement. On March 29, 1982, he gave Respondent a third letter outlining areas for improvement. Respondent finished out the 1981-82 school year but because of the unsatisfactory evaluation he received, requested a transfer to a different school for the 1982-83 school year. In Shanklin's opinion, Respondent did not meet minimum standards of competency nor could he achieve them because of a lack of effort to improve. Shanklin feels Respondent does not care about the education of children and would make only superficial efforts to be trained. Race is not a factor in this evaluation. At least 50 percent of Shanklin's staff is black. He has 85 teachers on his staff and in the last three years, he has rated 13 teachers unsatisfactory. Of these, 8 or 9 were black. Therefore, of the 255 teacher evaluations he has rendered in three years, 8 or 9 unsatisfactory's were given to black teachers. Dalton D. Epting, Director of Certified Personnel for the school board, talked with Respondent about his evaluation on several occasions when Respondent was at Wolfson High School. If a teacher is on tenure status and received an unsatisfactory evaluation, he may request a transfer to a different school for a second year during which efforts are made through counseling, training, and other assistance, to help him become satisfactory. When Respondent, due to his unsatisfactory evaluation at KSJHS requested a transfer, he was assigned for the second year, to Wolfson High where, for reasons cited below, he was rated unsatisfactory for the second year in a row. Respondent was sent to Wolfson for his second year because there was no vacancy for IA teachers in the system. Even though Wolfson was also full, rather than send Respondent back to KSJHS, they sent him to Wolfson, with all its teachers, so he could have the benefit of other good teachers. Race was not a factor in this decision. It is not automatic that a teacher who receives a second consecutive unsatisfactory rating is discharged. The system looks to see if the teacher was given every assistance to improve; to ensure that everything reasonable was done by way of counseling, resource help, training, and the like, to help him. If it was and the teacher did not improve, he is discharged. Here, school officials looked at all evaluations for both years, considered the discussions held with Respondent, and the input from cadre and resource personnel, and decided that Respondent was incompetent. The decision was made, therefore, to discharge the Respondent and this action was taken. During the 1982-83 school year, after his first unsatisfactory evaluation, Respondent worked for David E. White, principal at Wolfson High School. Immediately White sat down with Respondent, along with the IA supervisor to let him know what was expected of him and what help was available to him. He observed Respondent in the classroom on several occasions and, based on these and other factors in accordance with school board rules, in an effort to let the teacher know how he or she is doing, rendered an unsatisfactory rating on Respondent on October 30, 1982. Among the examples of Respondent's incompetence which led up to this evaluation were progress reports, discipline referrals, notes, and tests prepared by Respondent, some of which went home to parents, that contained obvious spelling, grammatical, and syntax errors. At first, White became aware of concern by students and their parents about Respondent's performance. When these complaints first began, White called in the IA supervisor for the school district, Mr. Hudson, to evaluate Respondent. He began evaluating Respondent himself when the complaints continued. These complaints were to the effect, basically, that the students could not understand Respondent. (It is noted here that Respondent suffers from a slight speech impediment). He would merely read from the textbook with no teacher-student interaction. There was little lab work - mostly lecture or reading. This was not appropriate in the Graphic Arts area which consists of such skills as printing, photography, silk-screening, and the like. Consistent with the notes, reports, end referral slips prepared by Respondent, White noted a lack of grammatical correctness in his oral presentations as well. In addition, White observed that the Respondent's students were not being motivated by him and spent little time on their classroom tasks, and he also observed that Respondent's presentation was lacking in technological detail. For example, on one occasion, Respondent was discussing a box camera and failed to detail the advantages and disadvantages of this type of camera, the type of films available for it, and the merits of each. When the class period was over, White discussed the above with Respondent, suggesting how the lecture could be improved. The following day White came back to class to see how Respondent carried the discussion forward and it was as if White had not said anything. Respondent continued to omit from his lecture the substantive technological information White, as principal, felt should be taught. White concluded that Respondent was not at all familiar with the subject matter he was teaching. 1/ Respondent was also considered to be deficient in his administrative skills. He lost (or had stolen) his grade book as well as his computer worksheets twice during one 9 week period. This created seven extra hours work for the curriculum office, with 3 additional hours by Respondent, to reconstruct, his grades. The fact that Respondent had to help in this project meant someone had to cover his classes for him. It also created a lot of inquiry by parents who, on learning of the lost grade book, questioned the validity of grades given their children. In addition, Respondent's attendance registers were not turned in on time notwithstanding frequent reminders in advance of due dates. At the end of the first semester, White had a conference with Respondent about the above. Respondent began being absent due to sickness in January, 1983 and went on sick leave on 9 February, 1983 which extended through the remainder of the school year. It is important to note that Respondent's absence at this time was valid and there is no inference or insinuation to the contrary. While he was absent, on March 8, 1983, Respondent was given a notice of intent to render an unsatisfactory evaluation report which was, in fact, issued on April 15, 1983. Here it must be noted that there could have been no improvement in performance between the notice and the evaluation as Respondent was not present for duty but was on sick leave. In any event, White contends that as a result of Respondent's teaching, the school's IA program has been seriously damaged, but that has not been shown. While Respondent's classes did net prepare his students for the second year curriculum in those areas, there is no evidence that the school's program has been seriously damaged. Nonetheless, it was shown be that, as white contends, Respondent did not meet minimum county standards and could not be improved to meet them. Consequently, on August 15, 1983, the superintendent of the Duval County public schools, by certified letter, notified Respondent that because of the two years of unsatisfactory evaluations, indicating professional incompetence, he was recommending the School Board discharge Respondent from employment. Thereafter, on January 16, 1984, the Duval County School Board, by Final Order, sustained the charge of professional incompetence, and discharged Respondent as a teacher. Race was definitely not an issue in White's evaluation. In his school, at which the student body comes from the upper level socioeconomic group, and which has rated first in Area Scholastic Aptitude Test scores for the past five ears, White has no black administrators or department chairmen on his staff. One black former department chairman was promoted to vice-principal at another school. His choices for personnel are based on qualifications, not race. At the present time, 12 percent of the teachers on staff are black and over the six years White has been principal at Wolfson High, only 3 black teachers have transferred out. While at both KSJHS and Wolfson High, Respondent was encouraged to consult with Everett T. Hudson, IA supervisor for the school board, and was, in fact, evaluated by him in both settings. He evaluated Respondent first on January 14, 1982, at the request of the Principal at KSJHS end observed Respondent during his 8-9 a.m. first period class. His conclusions were: classroom and shop cleanliness were poor; it appeared that activities were winding down shop organization was poor (no clean-up schedule was posted and metal stock was laying everywhere; the students' projects were not meaningful or of a quality nature; respondent spent too much time lecturing and did not allow for sufficient shop time, and, respondent's lesson plans were not available. When seen, it was obvious Respondent had not used the curriculum guide to draft the few plans he had. When Respondent transferred to Wolfson High, the Principal there also asked Hudson to come out and evaluate Respondent on a more frequent basis. Consequently, because of this request and because of the fact that due to Respondent's previous unsatisfactory rating he was on probation, Hudson evaluated Respondent ten times, at least once in each month, between September 8, 1982 and January 5, 1983. As a result of these evaluations, it appeared to Hudson that Respondent did not know how to: plan a project; lay out equipment; identify woods and where they came from; use certain equipment. It further appeared to Hudson that Respondent's lectures were poor in that he mumbled and he didn't seem to know what he was talking about. Further, his lesson plans were poor, and he failed to keep up with an appropriate time schedule for class. As a result, Hudson ended up, himself, helping the students rather than evaluating. When these observations were made, Mr. Hudson would go over them with Respondent and give Respondent a copy. Notwithstanding he pointed out these deficiencies repeatedly, there appeared to be no improvement at all. The school system here has a remedial program for teachers to use to improve their performance. There are resource teachers to provide assistance and there are also "in service" programs for teachers. Mr. Hudson suggested Respondent take some, one of which he was teaching right at Respondent's school. As he recalls, Respondent came twice out of 15 sessions. As a result of the above, Hudson does not believe that Respondent meets minimum competency standards and could not meet them. In his opinion, Respondent: suffers from a lack of organizational ability; has lackadaisical attitude toward improving the program; would not spend the necessary time to upgrade his skills, and has a weak knowledge of the subject matter. Here again, race was not an issue in these evaluations. Hudson supervises 95 IA teachers in the Duval County school system and is the only administrator. Of these teachers, approximately 25 are black. Over 13 years, he has been called in to evaluate, like this, 5 or 6 teachers, only one of whom was black, and of this number, only 2 have been discharged. Respondent has a Bachelor of Science decree in Education and a Masters degree in Industrial Education, both from Florida A & M University. In addition, he has attended a leadership development course at Michigan State University, military classes in the same while in the army at Ft. Dix, New Jersey, and numerous workshops in Florida at his own expense. It was his hope, when he started working in Duval County, to develop some feel for the IA field in that school system As a result of his experience there, he is of the opinion that the entire IA program is underfunded. Students have to pay for the wood and metal materials they use to build a prefect. He urges that without materials and equipment, a teacher cannot teach, a point concerned by Mr. Davenport, and that was the reason he submitted the purchase orders he did at KSJHS. In that regard, it would appear that about the time Respondent was teaching at KSJHS in 1981, a report by an Inspector (Jenkins) from the school district offices, reflected that materials and equipment in Respondent's class area did not meet minimum state requirements. In addition, there was some problem regarding the excessive size of the class. This problem was immediately corrected end certification in this area was restored. He also contends that a teacher's teaching style may differ from that of his principal's and still be correct. With regard to the April 15, 1953 unsatisfactory evaluation, Respondent contends, in an attempt to contest his rating, that since he was out sick much of the month of January, 1983, and all of the time from February 9, 1983 to the end of the school year, a rating dated in mid April would cover as large a period of time when he was not there as when he was. The Teacher Tenure Act under which this system operates provides for a second full year of evaluation before discharge. Since he was sick for half the second year, he contends, his discharge was not valid. He wants to fulfill his probationary period to prove he is a worthy teacher.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Respondent, William Wyche's teacher certificate issued by the State of Florida be revoked for a period of three years, with provision for reinstatement as provided for by statute. DONE and RECOMMENDED this 16th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk with the Division of Administrative Hearings this 16th day of August, 1984.
The Issue The issue to be determined is whether Petitioner has sufficient grounds to support dismissal of Respondent from employment.
Findings Of Fact At all times material hereto, Petitioner was a duly- constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to Article IX, section 4(b) of the Florida Constitution, and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher by the School Board and currently holds a professional services contract. He began working for the School District on or about March 2007, in the middle of the 2006-2007 school year. His first assignment was at Holmes Elementary School where he worked on a “waiver,” since he did not have an elementary education certification. The principal asked him to get his certification in elementary education, which he did. According to Respondent, he was asked to start working early because the principal did not have enough teachers. During that year, he was evaluated as meeting standards in all areas of evaluation and was rehired for the 2007-2008 school year. Prior to becoming a teacher in Miami-Dade County, Respondent served in the United States military from 1978-1985, and had worked as a registered nurse. He holds an associate’s degree from Miami-Dade College, a bachelor’s degree from Florida International University (“FIU”), two master’s degrees from FIU, an academic certificate in gerontological studies from FIU, and an academic teaching certificate from FIU. For the 2007-2008 school year, Respondent worked at Little River Elementary School (“Little River”). The principal at Little River asked Respondent to work on another “waiver,” this time for teaching English as a Second Language students (“ESOL”). After completing the necessary coursework, Respondent received an ESOL certification. Respondent remained at Little River through the 2008-2009 school year until he was involuntarily transferred to Scott Lake Elementary School (“Scott Lake”) for the 2009-2010 school year. During the latter two years at Little River, he was evaluated as meeting standards in all areas. According to Respondent, he was transferred to Scott Lake because the administration of Little River objected to the number of student discipline referrals (“SCMs”) he was writing on students. Respondent reports having written somewhere between 600 and 700 SCMs on students over the years. Respondent freely admits he wrote many SCMs at every school he worked at and highlights that fact as an excuse for why he performed poorly. During Respondent’s first three years of employment at Holmes Elementary and Little River, he was evaluated across the board on his annual evaluations as “Meets Standards.” During this period of time, the only other rating an employee could receive was “Does Not Meet Standards.” During the 2009-2010 school year, Respondent’s principal for his first year at Scott Lake was Valerie Ward. During the 2009-2010 school year, the School District made changes to the teacher performance evaluation system. Use of the Instructional Performance Evaluation and Growth System (“IPEGS”) was implemented. The IPEGS Summative Performance Evaluations (“SPEs”) were now comprised of eight Performance Standards, where a teacher could be rated “Exemplary,” “Proficient,” “Developing/Needs Improvement,” or “Unsatisfactory.” In her first year with Respondent, Ms. Ward rated him “Proficient” in all eight standards. At the end of the 2009-2010 school year, Ms. Ward placed Respondent on a 90-day performance probation pursuant to section 1012.34. During this 90-day probation process, he was observed by administration on at least five different occasions, was put on several improvement plans, and had several meetings with administrators. The 90-day probation process is very time- consuming for both the subject employee and the employee’s administration. In other words, it is not the preferred task of a busy principal, unless he or she must, and then only when it is warranted by poor performance. Respondent believes Ms. Ward placed him on performance probation to retaliate against him because he complained about the temperature in his classroom. This is the first of many excuses and justifications Respondent has offered to explain criticisms of his performance by administrators. For the 2010-2011 school year at Scott Lake, Respondent was again evaluated as proficient in all areas. On or about April 2012, Principal Lakesha Wilson- Rochelle assumed Ms. Ward’s role at Scott Lake. Principal Rochelle signed off on Respondent’s summative evaluation during the 2011-2012 school year, but did not fill it out, since it had already been completed by someone else. The score placed Respondent in the “needs improvement” category. She signed it only because she was required to do so, and the summative evaluation rating she gave him for the next school year was even worse by several points. It was also during the 2011-2012 school year that IPEGS underwent another change. Now there were seven professional practice standards on which teachers were evaluated and one standard that was based on actual student data. Use of IPEGS IPEGS was approved by the Florida Department of Education (“FDOE”) for all years relevant to this case. The IPEGS processes from the 2013-2014 school year forward consisted of the following: Each teacher that had been teaching for more than two years received one formal observation. If during that observation the teacher’s performance was sufficient, nothing more need be done, outside of a summative evaluation at the end of the year. However, informal feedback is given to teachers throughout the year after classroom walkthroughs and through other means. If a teacher was observed to be deficient in one or more standards during the formal observation, the teacher and administration would engage in something called “support dialogue” in which support in various forms is provided to the teacher, so that the deficiencies can be remediated. If the teacher still exhibits performance deficiencies after the support dialogue, they are placed on the 90-day performance probation. While on performance probation, the teacher is observed another four times after the initial observation. After the second, third and fourth observations, if the teacher has not remediated, the administration develops an improvement plan, which must be followed. The improvement plan gives the teacher assignments and assistance to aid him or her in remediating any deficiencies. Also, each teacher, regardless of whether placed on performance probation, receives an SPE, as well as a Summative Performance Evaluation Rating (“SPE Rating”) of either “Highly Effective,” “Effective,” “Developing/Needs Improvement,” or “Unsatisfactory.” In addition to the seven professional practice standards, a data component is also factored into the SPE Rating known as the VAM. The VAM As explained by Director of Research Services Dr. Aleksander Shneyderman (“Dr. S”), the VAM is a statistical model that attempts to measure a teacher’s impact on student learning growth through the use of a multi-level lineal regression. Dr. S has been working with the VAM, since its inception in 2010-2011. He has studied it and keeps abreast of Florida’s rules and regulations of how to calculate it. Dr. S and his office calculate what is called “Local VAM” for the School District. He also provides trainings to School District employees on the use of the VAM. Dr. S was tendered and accepted in this proceeding as an expert in VAM calculation. Local VAM is usually calculated in September/October by his office after the previous year’s testing data become available. Various assessments are used to create the Local VAM. It is calculated in compliance with state statutes, and the methodology is approved each year by FDOE. Also, the methods for calculating the Local VAM are bargained for and ratified by the United Teachers of Dade (“UTD”) teacher’s union. The Florida VAM is calculated by the State using a model that is approved by the Florida Commissioner of Education. The results of the Florida VAM are given to Dr. S’s office by the State. The Florida VAM is created using the Florida Standards Assessment (“FSA”). In the 2013-2014 and 2014-2015 school years, Respondent’s Local VAM scores were calculated by Dr. S’s office and based upon his students’ results on the Stanford 8 Achievement Test, 10th edition. UTD approved the methodology in VAM calculation for both of these years. For the 2015-2016 school year, Respondent’s VAM score was the Florida VAM in English language arts for fifth grade. The goal of the VAM is to measure a teacher’s effectiveness on student learning growth. In order to do this as accurately as possible, students are compared to similar students for an “apples to apples” comparison. Only students with the same demographic characteristics, as well as the same prior year’s test scores are compared to one another. The demographic factors considered are English Language Learner (“ELL”) status, gifted status, disability status, relative age (which considers whether a child was retained in a previous grade), and attendance (which was added in 2014-2015). Student demographics and the prior year’s test scores must be exactly the same. Based on these demographics and past scores, an expected score is created for each student. If the student exceeds that score, the credit for that success is given to the teacher. The School Board and Dr. S concede that the VAM does not account for every possible student performance variable, because, simply put, this would be impossible, since there are a limitless number of factors that could be considered. Moreover, certain factors are forbidden to be used by the Legislature, including socioeconomic status, race, gender, and ethnicity. (See § 1012.34, Fla. Stat.). Respondent argues that because not every imaginable factor that might affect a student’s grade is captured, that the VAM is not useful. Respondent claims that factors beyond the teacher might be causing poor performance, for example: lack of parental engagement. While levels of parental engagement could impact student performance, the School Board states that it is following state statutes to the letter and doing the best it can within the applicable statutory framework. Moreover, just as factors outside of consideration might hurt student performance, other factors might enhance performance, and the teachers receive those possible benefits as well--for example, if parental engagement is good. Those benefits would flow to the teacher, despite not having earned them through his or her personal efforts. Moreover, the VAM score ranges that are used to classify teachers are bargained for with UTD. The ranges have confidence intervals developed through the application of margin of error calculations that mitigate uncertainty to protect and “safeguard” teachers from unfair classifications. In many instances these safeguards give the teachers the benefit of the doubt to make sure they do not fall into the lowest category, which is “unsatisfactory.” Noticeably absent from these bargained for “safeguards” is any mention of how much instructional time a teacher must have with a class before those students’ data can be used to calculate a teacher’s VAM score. UTD has not bargained for any special rules designating when teachers can and cannot be held accountable for their class’ data based on the time they have instructed that class. As such, the only relevant inquiry is whether those students are with that teacher during the FTE period in February. Also, the law (see § 1012.34, Fla. Stat.) makes no mention of any minimum length of instructional time necessary to hold a teacher accountable for his or her students. The 2013-2014 School Year at Scott Lake Refusal to teach basic Spanish In May 2013, near the end of the 2012-2013 school year, Principal Rochelle advised Respondent that he would be teaching a kindergarten class for the 2013-2014 school year and that he would be required to teach them one hour of introductory Spanish. In an email to Principal Rochelle, Respondent asserted that he believed he was being assigned to teach Spanish to the kindergarteners in retaliation for his extensive reporting of student SCMs. In that same email, he advised her that he did not want to teach Spanish. Prior to being advised of this assignment, the School District conducted a language proficiency assessment for Respondent with both a written and verbal component, which he passed. Principal Rochelle had personally seen Respondent speak fluent Spanish to her school secretary and the art teacher. Because Respondent spoke fluent Spanish, or, at least, “conversational” Spanish (as admitted by Respondent’s counsel in his opening), she gave him the assignment. Moreover, as a principal, she had the right to assign Respondent as she saw fit. School Board Policy 3130 - Assignments reinforces this assertion stating, in relevant part, “Instructional staff members may be reassigned to any position for which they are qualified in order to meet needs of the District and pursuant to the collective bargaining agreement.” In order to teach the one-hour basic Spanish component of the class, Respondent did not need to be certified to teach Spanish. He only needed an elementary education certification, which he had. He even attended a training class on the implementation of the Spanish program. Respondent admits he can speak Spanish, write basic Spanish, has taken Spanish classes and passed the School District’s proficiency exam. Curiously, he objected to them giving the proficiency exam to him based on the grounds he was “singled out” for having a Hispanic last name, having been overheard speaking the language, and because he is not from a Spanish-speaking country. These are not reasonable objections when the School District explained the objective reasons listed above regarding Respondent’s qualifications to provide the basic- level Spanish instruction. Respondent persisted in his belief that he is “not qualified” to teach kindergarten Spanish despite all the evidence to the contrary. Respondent simply refused to do something that he was entirely capable of doing and that was within his ambit of responsibilities. He described one of the lessons he was allegedly incapable of teaching as follows, “You put a CD in the player. The kids sing songs in Spanish. The kids cut out pictures of objects and match them to a picture with the word in Spanish.” The kindergartners in his class did not speak Spanish; they spoke English. The Spanish component of the class was very basic and involved things like vowels, colors, puppets, basic books, and vocabulary words. Contrary to Respondent’s assertions, no complex grammar or sentence structure was involved. Such things are not even part of ordinary English kindergarten instruction, as admitted by Respondent. Moreover, he was provided with materials from which to draw the instruction. Principal Rochelle does not speak Spanish herself, yet believes she could teach the Spanish component, as it is a “piece of cake.” Respondent filed a grievance regarding the Spanish assignment. In order to appease and accommodate Respondent, Principal Rochelle eventually sent a Spanish teacher to his room to teach the Spanish component. However, Respondent then complained that the grades she was entering still had his name attached to them in the computerized grading system. Finally, the principal decided to move him to a first-grade class in early November 2013. Undoubtedly, the requests of Respondent led to this assignment change. Formal IPEGS observation On March 11, 2014, Principal Rochelle performed her formal observation of Respondent pursuant to IPEGS. On that day, no performance deficiencies were noted. However, throughout the year, Principal Rochelle had conducted many informal observations and walkthroughs of his classroom and had already provided him feedback regarding his performance and her expectations. Examples of that feedback can be found in an August 27, 2013, email from Principal Rochelle to Respondent. Moreover, according to Principal Rochelle, teachers tend to be on their best behavior during these observations–-which makes sense, because they know the boss/evaluator is watching. The formal observation is also only a snapshot in time of the teacher’s performance on a particular lesson; it is not a reflection of the entire year’s performance. Respondent has argued that Principal Rochelle has retaliated against him. If that were the case, this observation would have been a perfect opportunity to retaliate against him. However, she found no deficiencies in his performance on this day. Scott Lake SPE—Professional Practice Throughout the rest of the school year, Principal Rochelle made other credible observations regarding Respondent’s performance. Despite her counseling that he meet with parents, he refused to do so. He refused to participate in activities, including field trips, school celebrations, and award ceremonies. Other teachers actually had to hand out awards for him at the ceremony. He refused to implement group instruction techniques and did not take advantage of the presence of reading and math coaches. He refused to implement progressive discipline and “red, green, yellow” behavior management techniques. He refused to implement various discipline strategies laid out in the Student Code of Conduct and school-wide discipline plan prior to writing SCMs on students. Principal Rochelle recalls that he wrote approximately 25 SCMs on one student within the first nine weeks of school and made no attempt to address the behavior issues with the student’s parents. At one point Principal Rochelle accommodated his request to have a student removed from his class. Since this was only Principal Rochelle’s first full year as principal of Scott Lake, and she was still new to the school, she tended to give the teachers the benefit of the doubt when completing their SPEs. She also had a few teachers who had to be terminated for lack of professionalism that were more of a priority for her than Respondent. As such, she rated Respondent as “effective” in six standards on his SPE and as “developing/needs improvement” for the Communication standard. In her view, “effective” is akin to a “C” grade, whereas “highly effective” is “A plus/high B” status, “developing/needs improvement” is a “D,” and “unsatisfactory” is an “F.” When asked what Respondent would have rated himself in these seven standards, he testified he would have given himself five “highly effectives” and two “effectives.” He believes Principal Rochelle rated him lower than she should have as a result of retaliation against him for him not wanting to teach Spanish. This is Respondent’s second claim of retaliation against Principal Rochelle, and third claim of retaliation overall. Principal Rochelle’s denial of such retaliation is credited based upon her testimony at hearing and the exhibits offered in support. Despite the fact that Respondent’s 2013-2014 SPE seemed adequate to a casual observer (with the only obvious blemish being the “developing/needs improvement” in the Communication standard), when compared to his peers, a different story emerges. His professional practice points total put him in the bottom .8 percentile for all teachers district-wide and in the bottom 2.6 percentile for all first-grade teachers district-wide. Without belaboring the data, Respondent’s professional practice scores are at the bottom of the barrel, regardless of how you spin them. Scott Lake VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 12.5 points–-the lowest possible score. He was one of 11 first-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2013-2014 school year was “Needs Improvement.” Only 29 percent of his first-grade students met or exceeded their performance expectations. Respondent’s VAM was based on the performance of his first-grade students. Respondent believes that, since he was moved to the class in early November 2013, and the SAT exam was given in April, he should not be held accountable for their performance. In order for him to have a fair shake, he claims he would have had to be there instructing the students on week one. Respondent says the amount of time he was given was not fair because, “if I’m the lowest teacher in Miami-Dade County, and here for termination, no, sir, I don’t think it was fair.” If the rule Respondent proposes were implemented as policy, any teacher could simply avoid responsibility for their student’s performance by requesting a transfer sometime after the first week of the year. It is also not uncommon for teachers to have students added or subtracted from their classes throughout the year for a multitude of reasons. This is a fact of life that teachers have to be able to cope with in the ordinary course of business for the School District. Moreover, and somewhat ironically, if another teacher had been teaching Respondent’s students for a portion of the year, based on his SPE Ratings and student achievement data, Respondent probably would have had better scores. The students would likely have been getting a more effective teacher than he. Respondent also claims Principal Rochelle gave him a lower functioning group of students, who were behind in their learning. He explained that he knew they were low-functioning because he gave them “STAR tests” to gauge their ability levels. When pressed on cross-examination, Respondent admitted that he only tested his own students and never anyone else’s. Therefore, it would be impossible for him to know whether his students were any lower-functioning or further behind than any other teachers’ students. Respondent’s doubtful claim is further undercut by Principal Rochelle’s credible testimony that she selected the members of his first-grade class at random from overcrowded classrooms. Respondent’s claims that he was robbed of instructional time by field trips and fundraising activities, matters that are required of all teachers, are unconvincing excuses for his students’ poor performance. The 2014-2015 School Year at Norwood Shortly after the start of the 2014-2015 school year, Respondent requested a hardship transfer to Norwood Elementary School (“Norwood”) because the school day at Scott Lake was going to be increased by one hour. Despite the fact that he would have been compensated approximately $4,500.00 for this time, he chose to transfer schools. Principal Kevin Williams (or Dr. Williams) had a teacher on leave so he assigned Respondent to fill that gap. Respondent started teaching a kindergarten class, but was moved to a second-grade class during the first week of school. Prior to conducting a formal IPEGS observation of Respondent, Dr. Williams had performed several walkthroughs of his classroom. Based on these walkthroughs, Dr. Williams advised Respondent that he was not properly implementing the school discipline plan. Respondent also refused to implement “grouping” of the students during instruction time. Dr. Williams also had a reading coach model lessons for Respondent and assigned him a teaching assistant. Respondent was the only teacher who received this level of assistance. Dr. Williams even went so far as to have two meetings with UTD prior to his formal evaluation of Respondent in order to help him. By October 2014, Dr. Williams had already explained his expectations to Respondent. Formal IPEGS observation On October 1, 2014, Principal Williams performed the formal IPEGS evaluation of Respondent. Principal Williams noted no deficiencies on that day. Generally speaking, Principal Williams does not view these observations as punitive. Over the years, Dr. Williams has conducted approximately 240 observations of teachers, and, generally, the employees are “on point” when being watched. Moreover, like Principal Rochelle, Dr. Williams views these observations as a snapshot of teacher performance while the SPE captures the year- long performance. In the report of the observation, Dr. Williams suggested that Respondent promote interactions with students, encourage more student participation, connect to prior student knowledge and interests, and present concepts at different levels of complexity, among other items. Norwood SPE—Professional Practice After the formal observation, Dr. Williams continued to conduct walkthroughs of Respondent’s class. He observed the same issues with refusing to use “grouping” and refusing to properly implement the discipline plan. Respondent never took advantage of the modeling techniques that were provided for him. He also was not implementing differentiated instruction. Dr. Williams himself held a professional development class on campus for the school discipline plan, which, instead of attending, Respondent attended a social studies class off campus. Instead of following the prescribed discipline plan, Respondent was trying to control the behavior of his students with treats. Similar to his time at Scott Lake, he refused to participate in field trips, staff gatherings, award assemblies, and student activity days. Respondent had lesson plans, but did not always follow them. He would spend an inordinate amount of time on vocabulary. He gave some tests, but would refuse to grade other tests. The pattern of his teaching was inconsistent, at best. On his SPE, Principal Williams rated Respondent as “effective” in five standards, “highly effective” in one, and as “developing/needs improvement” for the Learning Environment standard. Dr. Williams’ rating for Learning Environment was lower because Respondent failed to implement appropriate discipline strategies despite being told to do so. In eight years of being a principal, this was the first time he had ever given a teacher a “needs improvement” rating. He mostly gives his teachers combinations of “highly effective” and “effective,” if they do what they are supposed to do. Nevertheless, Dr. Williams testified he still went easy on Respondent because he was new to the school. In terms of his SPE professional practice points, Respondent scored in the bottom two percentile for second-grade teachers district-wide and was the worst rated second-grade teacher at Norwood. Instead of following the discipline plan, Respondent was using the emergency call button, writing SCMs, and writing to the superintendent to have ten students removed from his class. Another teacher at the school, Mr. W, had the exact same set of students as Respondent, only he taught them in the afternoon and not in the morning. He had none of the same behavior management issues Respondent had with this same group of children. Respondent claimed that Mr. W was able to manage the children better because, like the students, he was African-American. When asked how Respondent would have rated himself in these seven SPE standards, he would have given himself six “highly effectives” and one “effective.” He believes Principal Williams rated him lower than he should have as a result of retaliation against him for writing SCMs and because he complained about the size of his initial kindergarten class. This marked Respondent’s fourth claim of retaliation overall. Principal Williams credibly denied such retaliation at the hearing. Norwood VAM and overall SPE Rating Respondent’s Local VAM score for learner progress points was 8.75 points-–the lowest possible score, again. He was one of 50 first-grade teachers district-wide who scored the bare minimum putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only six percent of his second-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from Norwood should not be considered because of his students’ behavioral issues. He also stated he did not have enough textbooks to send home with students. Much like at Scott Lake, he believes he was intentionally given bad students. This is peculiar for two reasons. First, Dr. Williams first tried to assign Respondent another class, but Respondent complained that one was too big. To accept this argument, the viewer would have to believe Dr. Williams knew Respondent would reject the larger class, and the principal had another one in the wings filled with “bad” students to make Respondent look ineffective. Second, Mr. W had none of the same problems Respondent did with this same group of students in the afternoon. To accept this contention, Principal Williams’ plan only “worked” on Respondent, since he was singled out for retaliation. This line of argument is nonsensical, at best. The 2015-2016 and 2016-2017 School Years at Aventura Waterways K-8 In looking for the right fit, Respondent was sent to Aventura Waterways K-8 (“AWK8”) for the 2015-2016 school year. He remained there for the 2016-2017 school year until he was dismissed from his employment in March 2017. As at his previous school assignments, the administrators at AWK8 tried to work with Respondent and the UTD to let him know their expectations prior to the formal observations. During these two school years Respondent was observed formally by Principal Luis Bello and Assistant Principal Ileana Robles on no less than nine occasions. In both years, during his initial observations, his performance was found to be deficient; and he was immediately placed on support dialogue and, eventually, 90-day performance probation. During these two probationary periods, he was provided assistance through improvement plans and completed all his improvement plan assignments. The goal was to help him remediate his deficiencies. The only change he ever implemented was switching from block to weekly lesson plans. Both his instructional delivery and the learning environment never improved. During these observations, Principal Bello and Assistant Principal Robles both observed the same repeated deficiencies, which they described in meticulous detail at the hearing. Summarizing their testimony, the issues concerning Respondent were: Pacing. Respondent spends too much time on issues and did not complete entire lesson plans. Questioning students. Respondent only uses basic, easy to answer questions; does not ask enough questions; or is dismissive of questions. Failing to properly explain concepts to students or to activate prior knowledge. Respondent fails to prompt students in order to generate interest in the subject matter and holds no conversations about the material in class. Not using challenging enough material. Respondent’s material was so basic that parents were concerned their children were getting grades they did not deserve and not learning grade- appropriate material. Principal Bello described Respondent’s instruction as “robotic” and lacking any semblance of “passion.” AWK8—Professional Practice On his SPE, Principal Bello rated Respondent as “effective” in two standards, and “unsatisfactory” in five standards. Principal Bello’s ratings were in line with the repeated deficiencies discussed above. He awarded Respondent “unsatisfactory” ratings because Respondent never remediated his deficiencies. Principal Bello credibly stands by his SPE Ratings as honest and admits to spending a great deal of time on them. In terms of his SPE professional practice points for 2015-2016, Respondent scored in the bottom (0) percentile for fifth-grade teachers at AWK8, all teachers at AWK8, fifth-grade teachers district-wide, and all teachers district-wide. When asked what Respondent would have rated himself in these seven standards, he would have given himself seven “highly effectives.” He believes Principal Bello rated him lower than he should have been rated, but could not say why. AWK8 VAM and overall SPE Rating Respondent’s State VAM score for learner progress points was 8.5 points-–the lowest possible score, for the third year in a row. He was the only one of 98 fifth-grade teachers district-wide who scored the bare minimum, putting him in the lowest (0) percentile. His overall SPE Rating for the 2014-2015 school year was “Needs Improvement.” Only 32 percent of his fifth-grade students met or exceeded their performance expectations. Respondent believes that his VAM points from AWK8 are not legitimate for a variety of reasons, none of which relate to his own shortcomings. Respondent’s excuses and the reasons not to credit those excuses are as follows: Respondent argues that his VAM cannot be counted against him because his afternoon class of fifth graders were ELL, and they spoke a variety of languages, including French, Russian, Hebrew, Portuguese, Spanish, and Turkish. His theory was that they performed poorly because of their poor grasp of the English language. For VAM scoring purposes, this excuse should not be credited because the VAM already takes into account their ELL status by comparing them only to other ELL students with identical demographics and prior test scores; and they are not expected to perform as well as non-ELL students. However, by Respondent’s own admission his afternoon ELL class was the best class he had had in ten years of teaching. He said they had emotional balance, presence of mind, and good parental engagement. He even explained how his ESOL certification assisted him in understanding how to teach them. According to him, by the end of the year, the students were at the level where they would be having conversations. Respondent also had another ESOL-certified teacher assist him for a portion of the year, which was a standard practice. Finally, ELL students, who are brand new to the country, are not calculated into the VAM because there are no prior year scores for which they can be compared “apples to apples.” Respondent himself testified that the lowest level ELL students did not get graded. This makes sense because Respondent testified that his afternoon ELL class was 31 students-–yet only 15 ELL students were factored into the data used to calculate his VAM score for 2015-2016. In sum, the grades of the lowest English language functioning students were not even held against him. Respondent next argues that the numbers of students in both his morning and afternoon classes at AWK8 exceeded class size restrictions. Respondent “believes” his morning class had 24 or so students, but only 18 after the special education students were removed. When the student data is examined, it appears that Respondent only had 15 non-ELL students factored into his VAM score. As for the afternoon ELL class, otherwise considered by him the best class he has ever had, Respondent claims there were 31 in that class. Even assuming Respondent’s numbers are accurate (and they do not seem to be, given the VAM data), these class sizes do not run afoul of class size restrictions and are commonplace at AWK8. The School District operates on averages for class size compliance and everyone teaching fifth grade at AWK8 had similar class sizes. None of those other teachers had the same problems Respondent did. Moreover, Respondent reported the alleged class size violations to the FDOE, and they did nothing about it. Respondent further argues that his morning group of students was once again a “bad” group that did not give him a “fair shot.” According to Respondent, he had a student who would sit in a garbage can and another that would tell him “F_ _k you” every day. He had behavior concerns with four to five students in the morning class. Eventually, the student who sat in the garbage can was removed from the class. Respondent then testified that these behavior issues were exacerbated by his absence from the classroom when he was performing his improvement plan activities. He now appears to be placing his behavior concerns on the administration for doing their job by trying to assist him and by remediating his deficiencies. Behavior management is integral to being a teacher. A teacher must not be allowed to escape his or her own responsibility for performance shortcomings by blaming it on the students. At every school where Respondent has taught, he has admittedly written a large number of SCMs, had behavior issues with his students, and believes he was purposely given “bad” students. The only common thread among these schools is Respondent. Nevertheless, he refuses to acknowledge that he might possibly be even a part of the problem and believes he has done nothing wrong. Respondent also blames his poor VAM on the fact that fundraising activities, book fairs, student activity days, and dances all detracted from instructional time at AWK8. This is the same excuse he used for his poor VAM at Norwood and holds no weight, since these are activities that all teachers at all schools must cope with as part of the instructional process. Respondent’s Termination by the School Board Respondent’s case was the first of its kind brought pursuant to section 1012.33(3)(b) (“3-year provision”), since this was the first time the School District had the requisite number of years’ data available. Of the thousands of teachers working for Miami-Dade County Public Schools, Respondent was part of a singular group of seven to nine teachers who fell into the three-year provision of the statute having the necessary combination of “needs improvement” or “unsatisfactory” final overall SPE Ratings. Of that handful of teachers, Respondent was the single worst. Respondent’s performance actually declined each year despite the assistance provided for and made available to him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 15th day of March, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of March, 2018. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Christopher J. La Piano, Esquire Miami-Dade County School Board Suite 430 1450 Northeast Second Avenue Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board Suite 912 1450 Northeast Second Avenue Miami, Florida 33132-1308 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether just cause exists to terminate Respondent's employment with Petitioner based on violations of Florida Administrative Code Rules 6A-5.056(2), , and (5), for incompetence, misconduct in office, and/or willful neglect of duties, respectively.
Findings Of Fact The Board is responsible for hiring, monitoring, and firing employees at its schools, including Manatee and Pinewoods. At all times relevant hereto, Respondent was an employee of the Board. Respondent was hired by the Board on August 22, 2005, as a second grade teacher at Harns Marsh Elementary. She taught second grade at that school for three years. At the end of her third year, Respondent was awarded a professional services contract. Prior to the beginning of her fourth year at Harns March, Respondent was told she was being moved to a fifth grade class for the upcoming school year. Inasmuch as she preferred teaching second grade, Respondent voluntarily transferred to Manatee for the 2008-2009 school year, as there was a second grade position open there. Manatee is a Title I school, serving a distinct population of students with various emotional or behavior issues. After teaching second grade at Manatee for one year, she was moved to a third grade class for the 2009-2010 school year, then back to second grade for the 2010-2011 school year. The principal at Manatee, Louzao, began to have concerns about Respondent commencing in the 2009-2010 school year. The annual evaluation Louzao initially prepared for Respondent after the 2009-2010 school year had contained less than satisfactory scores. In the face of a possible grievance of those scores by Respondent and the teacher’s union, Louzao upgraded the scores to satisfactory. Louzao was a fairly new principal, being at that time in only her third year as an administrator. She did not feel comfortable defending her negative evaluation against a formal grievance. Louzao also believed a satisfactory evaluation would encourage Respondent to improve. As a result of some of her concerns, Louzao ultimately moved Respondent to third grade for the 2010-2011 school year. Louzao felt like Respondent might interact better with students slightly older than the second grade students she had been teaching. However, some of the third grade students’ parents complained to Louzao about Respondent, resulting in some students being transferred out of Respondent’s class to another third grade class. It was not Louzao’s normal policy to transfer students; she would prefer that the teacher and students work through their issues. In this case, however, Louzao felt like removal of the students would be most beneficial as Respondent continued to work with the school guidance counselor dealing with her classroom demeanor. The teacher-student relationship was never fully corrected to Louzao’s satisfaction. For example, the first student was transferred out of Respondent’s class in August, then another in October, and yet another in November 2010. Louzao met or talked with Respondent daily and had her assistant principal counsel Respondent in an effort to improve Respondent’s teaching skills. At the end of the 2010-2011 school year, Louzao gave Respondent another evaluation with generally satisfactory scores, but listed several “areas of concern,” i.e., areas that needed additional work. Louzao would have given Respondent less than satisfactory marks, but she had failed to adequately document Respondent’s shortcomings during the school year, a requirement for unsatisfactory evaluations. Louzao then attempted to deal with Respondent’s inability to properly interact with her students by moving Respondent to a fifth grade class for the 2011-2012 school year.1/ Louzao believed that Respondent’s sarcasm and coarse demeanor would be more well-received by older students. Almost immediately, however, parents began to make complaints about Respondent. Louzao was contacted by parents who reported that Respondent had called students “retarded” or “stupid.” School staff questioned a number of students and received verification from those students that the remarks had been made. Based upon that verification – although it was not absolute proof that the comments were made – Louzao contacted the Board’s professional standards office to begin further investigation into the allegations. It was also reported that Respondent was refusing to allow children to use the bathroom when needed. Again, while Respondent admitted to having a fairly strict bathroom policy, there is no proof that children were actually denied bathroom privileges. The school, nonetheless, found sufficient student verification of the allegation to make it a point of discussion with Respondent. Then, in September 2011, an incident occurred which led to an investigation of Respondent by the Department of Children and Families. The incident involved discipline in a school stairwell. The security videos from a stairwell near Respondent’s classroom showed students walking and running up and down the interior, non-air conditioned stairwell numerous times for approximately 20 minutes without water or rest. There is no dispute about what the videotapes show; Respondent admits that she had the students doing “training” to prevent them from ascending and descending the stairs improperly. Several parents complained to the school about the staircase discipline incident. Respondent described the matter as follows: She had been having a lot of trouble with this particular class; they were very disrespectful. The students would misbehave when they were moving from the classroom to other areas of the school. Particularly, the students would run up and down the stairs. To change that behavior, Respondent decided to teach the students how to walk up and down the stairs. To that end, she had the students walk up and down the stairs over and over until they did it properly. The videotape accurately reflected that it took some students more attempts to stop running and that some students never did stop running. The activity was not, according to Respondent, punishment; rather, it was a teaching moment. She had seen a student injured at a prior school because of running down the stairs, and Respondent did not want that to happen again. Respondent said she just lost track of how much time the students were on the staircase. To administration, however, it looked like Respondent was disciplining the students in an extremely harsh fashion. The Board does not condone such actions by its employees. After the staircase discipline matter, Respondent was suspended with pay. A pre-determination hearing was held, but Respondent said the staircase incident was not mentioned. Rather, she was questioned about various allegations that had been made by students and their parents. The allegations included: Calling a student a “retard;” saying someone was stupid; not allowing students adequate bathroom breaks; making fun of a student’s name; and yelling at students. Upon completion of the pre-determination meeting, Respondent was suspended with pay and sent home. She was later assigned to an office job so that she could be of some benefit to the Board during her suspension. The investigation concluded with the issuance of a Letter of Reprimand to Respondent, who was also required to attend a class on classroom management and a Code of Ethics training session. She was not allowed to return to the classroom at that time. In January 2012, at the beginning of the second semester of the 2011-2012 school year, a second grade teaching position came open at Pinewoods. The Board’s Professional Standards office called Dr. Carlin and told her the Board wished to have Respondent fill the position. Dr. Carlin agreed to the assignment. Dr. Carlin did not speak to Louzao about Respondent and did not know of Respondent’s prior issues at Manatee. Respondent’s testimony that Dr. Carlin stated she was aware of “everything that happened at Manatee” is not credible. Respondent first went to Pinewoods on or about January 19, 2012. She was introduced to the school and to her classroom by Dr. Carlin. Dr. Carlin attempted to prepare Respondent and to provide all the support and assistance she could to insure Respondent’s success. One of the items of support provided by Dr. Carlin, was a website containing the school handbook which sets out all of Pinewood’s policies for teachers and other staff members. Respondent remembers meeting Dr. Carlin on a Thursday and being told she would start co-teaching the class with the out-going teacher the following Monday, January 23, 2012. It was Respondent’s understanding that she would then begin teaching on her own the following Friday, January 27, 2012. (Respondent said her understanding was based on an email she received from the Professional Standards office informing her about the new assignment. However, the email was not produced as an exhibit in this case.) In fact, Respondent was introduced to the class on Friday January 20, 2012, the out-going teacher’s last day. She took over the class the following Monday, January 23, 2012, on her own. Dr. Carlin remembers spending a fair amount of time with Respondent on Respondent’s first day before introducing her to the class. Respondent’s first day with the students in her new class was atypical; it was a field day of sorts at the school, so the students were out of the class more than they were in. At the beginning of the class period, however, Respondent noticed that the children were socializing and talking for the first few minutes after arrival. Respondent asked the out-going teacher if she always allowed the children to do that, and was told she did. That was a different approach than the one normally taken by Respondent. She had hard-fast rules about what students should do upon entering the classroom, e.g., turn in their homework, bring their homework notebook to the teacher’s desk, sharpen their pencils, use the bathroom, and then do advanced reading or use the computer until regular instruction began. Respondent’s approach was much more strict and instruction-oriented than the prior teacher’s. Within two or three days of Respondent assuming her new teaching position, some of the students’ parents began calling the school with complaints. The initial complaint was that Respondent was assigning weekend homework in violation of the school’s policies. When Respondent became aware of the policy, she ceased that practice. Dr. Carlin believes Respondent should have known the policy after reading her school handbook, but the book was over 50 pages long and contained a lot of information. Thus, Respondent’s temporary violation of that policy is excusable. More troubling, however, were the complaints concerning Respondent’s alleged verbal abuse of students and her rude demeanor. Parents who visited Respondent’s classroom found her to be aloof, stand-offish, and she seemed not to be engaged with the students. It was reported again that Respondent was refusing to allow students to use the bathroom as needed. There is no competent evidence to support the allegation, but it is troubling that the same complaint that had been made by parents at Manatee was being made by parents at Pinewoods. The Board’s director of professional standards received “weekly, if not daily,” calls from parents and administration complaining about Respondent almost from the day she started her employment at Pinewoods. Dr. Carlin visited Respondent’s classroom on several occasions to see for herself whether there were any “teaching” issues that needed attention. Dr. Carlin met with Respondent on February 1, 2012, just one week after Respondent started teaching at Pinewoods. The purpose of the meeting was to discuss the parents’ complaints and to provide suggestions for doing better in the classroom. Respondent was not told at that time that she was being formally reprimanded. A letter dated February 6, 2012, memorialized the February 1, 2012, meeting and constituted a written reprimand for Respondent’s behaviors in the classroom. Despite the prior meeting, Respondent was surprised by the written reprimand. The letter set out six categories of problems that had been identified by Dr. Carlin from letters and conversations with a number of parents: Lack of respect shown to students and parents, e.g., rolling her eyes and speaking in disrespectful tones; Classroom not warm and supportive. Refusing to help children and making them cry; Refusing to allow children restroom privileges when needed; Moving through the curriculum too fast; Giving excessive homework; and Causing children to cry and become distressed about coming to school. Respondent denied each of the allegations and expressed surprise about the parents’ complaints. She also said that part of the blame for any problems lay with the students; they were not respectful to her and had no rules of conduct.2/ Dr. Carlin knew, however, that the prior teacher had rules for her classroom and the children were well-behaved. Respondent signed the letter, acknowledging receipt. The letter then set forth some guidelines or action plans that were to be implemented immediately by Respondent. In response to the first item, prohibiting Respondent from yelling at students or speaking in a disrespectful tone, Respondent seemed to go to the other extreme. She became very quiet and almost apathetic in her relationship with the students. Respondent did meet expectations in the other items, at least to some degree, though Dr. Carlin was not totally satisfied with all Respondent’s actions. Finally, the letter provided four distinct suggestions for improving her conduct and teaching habits, including: Use of the Peace Education materials in her classroom, including I-Care Rules. Respondent was to meet with Mrs. Cutting and Ms. Roberts for assistance with implementing the materials. Use of the Board’s academic plans for subject areas. Respondent was to meet with Mrs. Cutting and Mrs. Hardee to receive coaching and modeling with regards to the materials. Initiation of a classroom plan outlining her expectations for students. Following all directives in “this letter.” In response to the four suggestions, Respondent: Met with Mrs. Cutting and Ms. Roberts about the Peace Education materials. However, Respondent did not demonstrate implementation of the materials in her classroom. Respondent met with Mrs. Cutting and Mrs. Hardee about use of the Board’s academic plans. However, she did not utilize the plans on a regular basis. Respondent did initiate a classroom plan outlining her expectations for students. Dr. Carlin described the plan as inferior and had to re-write it (with assistance from her staff). Respondent considered her plan to be adequate in all regards, even prior to editing by Dr. Carlin. The fourth guideline was somewhat nebulous, so it is difficult to ascertain whether Respondent complied with the directive. After the letter was issued, Dr. Carlin waited for a week to give Respondent an opportunity to incorporate the guidelines and suggestions. She then conducted three formal observations of Respondent’s classroom to determine whether the guidelines and suggestions were being followed. She prepared written synopses of her observations. The assistant principal, Ms. DeMarchena, also did an observation that was codified in written notes. The gist of the observations by administrative staff was that Respondent was unresponsive to students, uncaring in her demeanor, lethargic in her efforts to teach, and somewhat rude. Dr. Carlin described Respondent as “the worst teacher I have ever seen in my career.” Dr. Carlin noticed a totally lethargic demeanor by Respondent after the February 1, 2012, meeting and February 6, 2012, written reprimand. Respondent seemed to just stop caring about her job. Dr. Carlin said of her visits to Respondent’s classroom, “I really couldn’t quite believe my eyes.” There were 18 students in Respondent’s classroom at Pinewoods. Eight of their parents made formal complaints to Dr. Carlin about Respondent’s classroom demeanor or teaching skills. Three of those parents testified at final hearing and expressed overall dissatisfaction with Respondent’s teaching abilities. The parents observed that their children did well at school prior to Respondent’s arrival, then did well after Respondent’s departure. While Respondent was teaching, however, their children were unhappy, unmotivated, and emotionally distressed. Two of the parents had teaching experience and measured Respondent both professionally and from their perspective as parents. These parents also discussed Respondent’s behavior and teaching abilities with many of the other parents from the class. The parents’ complaints included the following: Respondent ignored two parents when they came into the classroom, a response the parents had not experienced from any other teacher. Respondent did not engage her students in the celebration of a holiday (Valentine’s Day), even upon intervention by a parent who brought treats for the students. Respondent’s classroom was messy and disorganized. Students who had previously enjoyed school were now reluctant to attend Respondent’s class. Students feared Respondent and were afraid to complain about her strictly enforced policies, e.g., bathroom and pencil sharpening limitations. One parent reported that her child prayed each night that Respondent would be nice to the class. Pinewood’s curriculum specialist, Ms. Hardee, was asked by Dr. Carlin to observe Respondent in the classroom and to provide assistance as needed. Ms. Hardee intervened to assist Respondent to gain access to the web-based accelerated reading materials when Respondent initially experienced problems. She also helped Respondent understand the homework policy and other school policies. When observing Respondent’s classroom, Ms. Hardee found that not all students were actively engaged. Ms. Hardee also substituted for Respondent on one occasion and could not find a lesson plan for that day. Respondent said the lesson plan was right in the middle of her desk and does not know why Ms. Hardee could not find it. Many of the parents, as well as administrators, reported that Respondent’s classroom was extremely messy and disorganized. It is, therefore, understandable that Ms. Hardee would not find the lesson plan. Hardee, who was called by Respondent as a witness, provided extremely credible testimony. During her review of Respondent’s class, Hardee found a “lack of procedures” in the classroom and the students were not engaged during instruction time. Hardee described Respondent’s style as “flat, without expression or enthusiasm.” One parent of a student at Manatee, the prior school at which Respondent had taught, testified on Respondent’s behalf. She praised Respondent’s teaching and said Respondent did a good job with her child. Of the several parents’ testimony, the Manatee parent’s was the least persuasive. On February 22, 2012, Dr. Carlin met with Respondent and addressed the many concerns raised by parents and the observations made by herself and her staff. Respondent and Dr. Carlin discussed all the problem areas and Dr. Carlin told Respondent unequivocally that failure to correct the problems would result in sanctions, up to and including termination of employment. It was Dr. Carlin’s intention to place Respondent on a very short leash, intending to act quickly if things did not drastically improve. However, that very evening Dr. Carlin received three additional letters from upset parents complaining about “very disturbing” incidents in Respondent’s classroom. Dr. Carlin contacted the Professional Standards office and the Board’s attorney the next day. In consultation with those people, Dr. Carlin decided that, notwithstanding, her representations to Respondent the day before, she must remove Respondent from the classroom before irreparable harm was done to the students. She then notified Respondent – on February 23, 2012 – that she was being suspended with pay pending further review. The entire situation concerning Respondent’s classroom demeanor and actions was then reviewed by the Professional Standards office. That office determined that just cause existed to terminate Respondent’s employment. Dr. Carlin concurred with the decision. By letter dated April 20, 2012, Respondent was notified that a recommendation for termination of employment would be made to the Board at its next meeting. The letter also notified Respondent that she was suspended without pay effective April 23, 2012. Respondent rejects all of the complaints against her as being without basis or truth. She says the “staircase discipline” issue was just a misunderstanding; she simply lost track of how much time she made the children walk up and down the stairs. She did not, however, grieve the reprimand issued for that incident. Respondent says the children simply misunderstood her bathroom policy; it was correct and appropriate. The parents’ comments about her were, she said, derived from their children’s mistaken perception of her demeanor and attitude. And, even though Respondent acquiesced and took a behavior management class and a class on teacher’s code of ethics, she did not believe she needed them or that they taught her anything. Respondent’s testimony lacked credibility and was not persuasive. The most credible and persuasive evidence presented in this case indicates that Respondent does not recognize how she comes across to students and their parents. Respondent’s demeanor and teaching style, while it may be comfortable to her, is not consistent with good teaching practices. She is dour, lethargic, unfriendly, scary to her students, and defensive. Because she does not understand her own shortcomings, Respondent has become incompetent and has willfully neglected her duties as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, upholding the termination of Respondent, Elaine Partenheimer's, employment for the reasons set forth above. DONE AND ENTERED this 19th day of October, 2012, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 October, 2012.
