The Issue The issue is whether Respondent is guilty of failing to make reasonable effort to protect a student's safety, in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a).
Findings Of Fact Respondent holds Florida Educator Certificate 646554 in the area of Mentally Handicapped. For the past six or seven years, Respondent has been employed as an ESE teacher at Windy Ridge. The record contains no evidence of prior discipline of Respondent's educator certificate, but the District suspended her for five days without pay for the three incidents that are described below. For the 2012-13 school year, Respondent and four paraprofessionals taught a class of seven ESE students. The paraprofessionals performed tasks assigned to them by Respondent. Absences on December 4, 2012, reduced the class to five ESE students, Respondent, and two of the four paraprofessionals regularly assigned to Respondent's classroom. The principal assigned a substitute for one of the two absent paraprofessionals, so four adults were supervising five students on that day. One of the five students present on December 4 was D.R., who was nine and one-half years old and suffered from a "significant cognitive disability." As documented by his Individual Educational Plan (IEP), which is dated November 6, 2012, D.R.'s mother was "very concerned" about the safety of her son, who was tube-fed, "non-verbal," and able to follow only "some simple one-step commands." The IEP warns that D.R. was in a "mouthing stage," meaning that he put "everything" in his mouth for sensory input. As described in his social/developmental history, which is dated November 1, 2012, D.R.'s health was "fragile." The three incidents at issue took place during approximately one hour at midday on December 4. The first incident took place at 11:10 a.m. Serena Perrino, a District behavior trainer, was sitting alone in Ms. Barnabei's classroom, which is next to Respondent's classroom. The two classrooms are joined by the two teachers' offices, so it is possible to walk between the classrooms without entering the hallway. On a break, Ms. Perrino had turned off the lights and was on the computer at the front of Ms. Barnabei's classroom. While facing the computer monitor, Ms. Perrino heard a noise behind her, turned around, and saw D.R., by himself, seated on the floor playing with a toy. Ms. Perrino knew that he belonged in Respondent's classroom. Without delay, Ms. Perrino walked D.R. toward his classroom, but, as they were passing through the teachers' offices, Ms. Perrino and D.R. encountered one of Respondent's paraprofessionals, who said that she was "just coming to get him, thanks." The second incident took place between 11:30 a.m. and noon. Bernadette Banagale, the substitute paraprofessional assigned to Respondent's classroom on that day, was eating lunch in a small outside courtyard that is located at the end of the hallway where Respondent's classroom is located. Ms. Banagale saw D.R., by himself, enter the courtyard from the doors at the end of the hallway. Ms. Banagale approached D.R. and, with some difficulty, walked him back to Respondent's classroom where she left him in the custody of the other two paraprofessionals, Susan Brown and Delta Porter, but not Respondent, who was not in the classroom when Ms. Banagale returned the child. The third incident took place shortly after noon. Cathy Zimmerman, a teacher, was sitting in a classroom eating lunch with another teacher. Looking out the window of the classroom, Ms. Zimmerman noticed D.R. in the adjoining breezeway, which divides the building from the school parking lot. Ms. Zimmerman did not know D.R., nor where he belonged, but she saw that he was unescorted. Approaching D.R. in the breezeway, Ms. Zimmerman guided him back through the doors leading to a hallway that, after a short distance, intersects the hallway where Respondent's classroom is located. As she was walking the child into the building, Ms. Zimmerman directed the teacher with whom she had been having lunch to enter the nearest classroom to see if anyone could identify the child. As directed, the other teacher entered Ms. Barnabei's classroom, where she found Ms. Perrino, who again took custody of D.R. and immediately returned him to Respondent's classroom where Ms. Perrino found Respondent and one or more paraprofessionals. In an effort to prove that Respondent failed to make reasonable effort to protect D.R., Petitioner offered two pieces of evidence: during direct examination, the principal prescribed that a classroom teacher is required to know at all times the location of her students, and, during cross-examination, Respondent agreed with the metaphor supplied to her by Petitioner's counsel that a classroom teacher is the "captain of the ship." The principal's prescription and Respondent's metaphor constitute the entirety of Petitioner's explicit analysis of the reasonableness of Respondent's effort to protect D.R. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the first incident. The principal's testimony is inapt because Petitioner failed to prove that a paraprofessional did not always know D.R.'s location; that Respondent failed to protect D.R. when a paraprofessional knew his location, regardless of whether Respondent knew his location; and that D.R.'s safety was compromised at any time during the few seconds that he was in the adjoining classroom. Respondent's testimony is inapt because Petitioner did not prove that a paraprofessional failed to make reasonable effort to protect D.R.'s safety, which would be a pre-condition to attributing this failure to the captain of the ship, as discussed in the Conclusions of Law. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the second incident. Petitioner failed to prove that Respondent was in the classroom at the time of D.R.'s escape or at any time during his ensuing absence from the classroom and failed to prove that Respondent's absence from the classroom was unauthorized. As for the absence of Respondent from the classroom at the time of the escape in the second incident, the strongest evidence is Respondent's written statement to this effect. Other evidence tends to support Respondent's written statement that she was not in the classroom at the time of the escape. Ms. Banagale's scheduled lunch was 11:30 a.m. to noon, and nothing in the record suggests that the substitute paraprofessional took her lunch at other than her scheduled time. The distance between the front door of Respondent's classroom and the exterior doors leading to the courtyard is the width of the single classroom that separates Respondent's classroom from these exterior doors, so it would not have taken D.R. long to travel from the front door of the classroom to the exterior doors leading to the courtyard. Respondent's scheduled lunch was 11:00 a.m. to 11:30 a.m., but Respondent testified that she was behind schedule when she took her lunch. She also testified that she returned to the classroom "a little after noon." Nothing in the record indicates how long Respondent took for lunch, but, if she took all of her allotted time, she likely left the classroom shortly after Ms. Banagale, leaving a very narrow window for D.R. to escape, if he were to do so after Ms. Banagale's departure, but before Respondent's departure--a fact that Petitioner has not established. The only evidence suggesting that Respondent was in the classroom at the time of D.R.'s escape comes from Respondent's testimony at the hearing to this effect. Notwithstanding the inculpatory nature of Respondent's testimony, it is impossible to credit it. Provided nearly two years after the incident, Respondent's testimony was, at times, confused and unclear, but her written statement is clear and straightforward. It would appear that, based on the findings below concerning the third incident, Respondent may have confused the second and third incidents. The principal's prescription and Respondent's metaphor do not prove that Respondent failed to make reasonable effort to protect D.R. in the third incident. The third incident is more complicated than the first and second incidents because it is more difficult to determine exactly what Petitioner proved and the extent to which the material factual allegations extend to the proof of the third incident.2/ At minimum, Petitioner pleaded3/ and proved that D.R. escaped from the classroom, and Respondent was in the classroom at the time of the escape. Respondent gave a written statement admitting that she was present when D.R. left the classroom and that she was unaware of his departure "because my back was turned by me working with another student on the computer, [as D.R.] left out the rear door." At the hearing, Respondent testified confusingly, possibly suggesting that she was at lunch or in planning when D.R. escaped in connection with the third incident, but any such exculpatory testimony is discredited for the same reason that her inculpatory testimony regarding the second incident was rejected. As was true of the written statement in connection with the second incident, other evidence tends to support Respondent's written statement in connection with the third incident. As noted in the discussion of the second incident, Respondent returned to the classroom "a little after noon." At this point, Respondent, Ms. Banagale, and Ms. Brown were in the classroom. Ms. Porter's scheduled lunch was from noon to 12:30 p.m., and nothing in the record suggests that she did not take her lunch as scheduled. As discussed in the Conclusions of Law, analysis of whether Respondent failed to meet a reasonableness standard may be facilitated by consideration of the burden of taking precautions sufficient to prevent an escape, the probability of an escape, and the magnitude of the threat to D.R.'s safety, if he escaped. The burden of taking additional precautions was not insubstantial. The classroom has three exits, and D.R. used each of them in connection with the three incidents. In the first incident, as noted above, D.R. used a side exit through the teachers' offices to get to the adjoining classroom of Ms. Barnabei. In the second incident, D.R. used the front door to get to the courtyard. In the third incident, D.R. used the rear door to access the adjoining breezeway, where Ms. Zimmerman found him no more than 75 feet from the rear door. Evidence suggests that locking the doors at each of these exits was forbidden, possibly due to fire regulations. Although three adults were supervising only five ESE students at the moment of D.R.'s escape in the third incident, the paraprofessional who normally taught D.R. one-on-one at the time of the escape was absent. It is not entirely clear how long Respondent was in the classroom before D.R. escaped, but Respondent was performing instructional duties at the moment of the escape, so additional attention by Respondent to security would have meant reduced instruction, at least of the child whom she was teaching one-on-one at the time of the escape; this adds to the burden of taking escape precautions.4/ The probability of D.R.'s escape was demonstrably very high, as evidenced by his three escapes in a single hour on December 4. The magnitude of the threat to D.R.'s safety from an escape is difficult to assess. D.R. was a medically fragile, highly vulnerable child. However, he suffered no injuries in any of the three escapes that are the subject of this case. The magnitude of the threat posed to D.R.'s safety from escaping was thus low. Considering that the burden of taking additional precautions was moderate, the probability of escape was high, and the magnitude of threat to D.R.'s safety from an escape was low, it is impossible to find that Petitioner proved by clear and convincing evidence that Respondent failed to make reasonable effort to protect D.R.'s safety by preventing the escape in connection with the third incident. The analysis in the preceding paragraphs focuses on Respondent's failure at the moment of D.R.'s escape, not on the duration of his absence from the classroom and any ongoing failure to notice that the child was missing from the classroom. As explained in the Conclusions of Law, Petitioner did not plead these failures as grounds for disciplining Respondent, but, in an abundance of caution, the following findings address these alternative grounds for determining that Respondent failed to make reasonable effort to protect D.R.'s safety in connection with the third incident. There is no direct evidence of how long D.R. was out of the classroom in connection with the third incident. There is only one point in time established by direct evidence: Ms. Zimmerman first saw the child at 12:10 p.m. There is no direct evidence of when D.R. escaped from the classroom, nor could there have been such evidence from the known witnesses. Ms. Zimmerman's written statement notes that all of the physical education teachers, which may include her, were in the area of the breezeway from noon to 12:07 p.m., and they never saw D.R. Ms. Zimmerman's statement implies that someone would have seen D.R. if he had been anywhere in the breezeway by himself. Although Ms. Zimmerman could have estimated how long she had the child before turning him over to Ms. Perrino, no one asked her to do so.5/ And there is no other direct evidence of how long Ms. Zimmerman had the child. Based on the evidence cited in the preceding paragraph, D.R. escaped the classroom between 12:08 p.m. and 12:10 p.m. and returned to the classroom between 12:11 p.m. and 12:13 p.m. Limiting inferences to those supported by clear and convincing evidence, as discussed in the Conclusions of Law, the earliest that D.R. left the classroom was 12:09 p.m., and the latest that D.R. returned to the classroom was 12:11 p.m. This means that Petitioner has proved that D.R. was absent from the classroom for no more than two minutes: one minute by himself and one minute accompanied by Ms. Zimmerman. The burden of taking adequate precautions to detect the child's absence and return him to the safety of the classroom is lower than the burden of preventing the escape, which can occur in a few seconds, although it is difficult to assess what exactly would have been required of Respondent to conduct a search or, by notifying school administrators, to cause a search to be conducted. The burden of preventing an escape is much greater than the burden of noticing, within two minutes, that a child is missing from a five-student classroom. The magnitude of the threat to D.R.'s safety rises the longer that he is out of the classroom, especially unescorted. Presenting a closer case than the pleaded case involving only an escape, the claim that Respondent failed to make reasonable effort, when directed to the length of time that D.R. was out of the classroom, requires consideration of any effort that Respondent made during D.R.'s absence. The duration of D.R.'s absence is thus linked to whether Respondent noticed that D.R. was missing and, if so, what Respondent did upon discovering that he was gone. As discussed in the Conclusions of Law, because inferences are limited to those supported by clear and convincing evidence, Petitioner has not proved that Respondent and the paraprofessionals failed to notice that D.R. was missing. There is no direct evidence that Respondent and the paraprofessionals failed to notice that D.R. was missing from the classroom. The record lacks admissions from Respondent and the two paraprofessionals in the classroom during the third incident that they were unaware of D.R.'s absence.6/ Both Ms. Zimmerman and Ms. Perrino testified that they did not see anyone in the vicinity of the classroom looking for D.R., and this testimony is credited, but supports no more than an inference by a preponderance of the evidence that the adults in the classroom were not looking for the child, and does not support even an inference by a preponderance of the evidence that the adults in the classroom had failed to notice that D.R. was missing. Ms. Perrino testified that when she returned D.R. to the classroom, none of the adults present seemed to have realized that the child had been missing. This testimony is credited, but, lacks important detail, including on what this testimony is based and whether this observation applied to Respondent, so as to support no more than an inference by a preponderance of the evidence that the adults had not noticed that D.R. was missing. Thus, even if Petitioner has pleaded the duration of D.R.'s absence and a failure to notice the absence of the student as grounds for determining that Respondent failed to make reasonable effort to protect his safety, Petitioner failed to prove these claims by clear and convincing evidence
Recommendation It is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2014.
The Issue The issues are whether Respondent, Cynthia A. Foy (Respondent), committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsection 1012.795(1)(b), (c), (f), and (i), Florida Statutes (2003),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e) and (5)(d); and, if so, what penalty, if any, should be imposed on Respondent's teaching certificate.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing and the entire record in this proceeding, the following Findings of Fact are made: Respondent, Cynthia Foy, holds Florida Educator's Certificate No. 468641, covering the areas of early childhood education, elementary education, and English to speakers of other languages, which is valid through June 30, 2007. Respondent had been employed with the Hillsborough County School Board 17 years as of the 2002-2003 school term. At all times pertinent hereto, Respondent was employed as a first-grade teacher at Colson Elementary School (Colson) in the Hillsborough County School District (School District). Respondent worked as a teacher at Colson for about five years, beginning the 1998-1999 school year. During her employment in the School District, including her employment at Colson, Respondent never had any disciplinary action taken against her. From 1986 through 1996, Respondent consistently received satisfactory ratings on her annual teacher evaluations, except for one school year when she had three deaths in her family, including the sudden death of her father and of her 38-year-old brother. Respondent's Absences Respondent was absent from work 22 days during the 1998-1999 school year, her first year at Colson. Some of the absences were related to Respondent's health issues. However, most of Respondent's absences were related to her mother's illness. During the 1998-1999 school year, Respondent's mother was confined to a nursing home and had become very ill and frail. Due to her mother's failing health, Respondent wanted to be with her mother, to watch and take care of her. Also, even though Respondent's mother was in a nursing home, Respondent was responsible for taking her mother to her own doctors to make sure she got the proper care. During the 1999-2000 school year, Respondent was absent from work 13.5 days. Respondent's mother died during that school year. As a result, Respondent missed 13.5 days to deal with matters related to her mother's death. During the 2000-2001 and 2001-2002 school years, Respondent was absent from school for 19.45 and 16 days, respectively. These absences were because of Respondent's own health issues. During these school years, Respondent was under an extreme amount of stress due to what she perceived to be a hostile work environment at school. Mary Clark, principal of Colson, was concerned about Respondent's absences and specifically noted this concern on all of Respondent's evaluations, which are at issue in this proceeding. The reasons for Respondent's absences were not disputed, and there is no assertion that the absences were unauthorized. However, Mrs. Clark believed that Respondent's absences resulted in the lack of continuity of instruction and negatively impacted the learning of students in Respondent's first-grade classes. Mrs. Clark testified that because of their concern about their children's progress, some parents requested that their children be transferred from Respondent's class to another first-grade class. Records of such requests and actual transfers were not presented at hearing. However, Mrs. Clark recalled that at least one student had been transferred from Respondent's class. Whether the only reason for the transfer was Respondent's absences is unclear. Notwithstanding Mrs. Clark's concern and belief that Respondent's absences had a negative impact on the students in her class, no basis for this concern was established. To the contrary, during Respondent's tenure at Colson, her students consistently performed well academically as reflected by their scores on the Stanford Achievement Test, a nationally normed test. At all times relevant to this proceeding, the Stanford Achievement Test was used by the School District to assess first-grade students' achievement in the areas of mathematics and reading. At all times relevant to this proceeding, the test was administered to first-grade students at Colson in March or April of each school year. In March 2000, there were four first-grade classes at Colson. Of those four classes, Respondent's students made the highest scores in both the reading section and the math section of the Stanford Achievement Test. The results of the Stanford Achievement Test administered in April 2001, reflect that of the four first-grade classes, the students in Respondent's class made significantly higher scores in both reading and mathematics than the students in the other three first-grade classes. As of April 2002, Colson had six first-grade classes. Of the six first-grade classes, Respondent's class ranked first on the reading section and second on the mathematics section of the Stanford Achievement Test. Respondent's Annual Performance Evaluations The School District utilizes the Classroom Certificated Instructional Effectiveness Evaluation Form (Evaluation Form), which has been approved by the Hillsborough County School Board (School Board) as the instrument by which its teachers are evaluated. Typically, tenured teachers with professional service contracts are evaluated annually, but if the tenured teacher is experiencing difficulties in the classroom, the school administrator may evaluate the teacher more than once a year. At all times relevant to this proceeding, the Evaluation Form consisted of the following categories in which teachers are evaluated: Category I, Planning and Preparation, which includes six subsections or areas; Category II, Professional Behaviors, which includes 12 areas; Category III, Techniques of Instruction, which includes 15 areas; Category IV, Classroom Management, which includes seven areas; and Category V, Instructional Effectiveness, which includes one area. The Evaluation Form requires that the teacher's performance in each area be rated as "satisfactory," "needs improvement," or "unsatisfactory." The highest possible rating is "satisfactory," and the lowest rating is "unsatisfactory." In addition to the areas under the various categories in which teachers are rated, the evaluation requires that the teacher be given an "overall rating" of "satisfactory" or "unsatisfactory." As principal of Colson, one of Mrs. Clark's responsibilities was to supervise and evaluate the teachers at the school. Consistent with that responsibility, Mrs. Clark supervised and evaluated Respondent. Mrs. Clark evaluated Respondent once in the 1998-1999, 1999-2000, and 2000-2001 school years, usually in April. During the 2001-2002 school year, Mrs. Clark evaluated Respondent twice, in December 2001 and in March 2002. Mrs. Clark decided to evaluate Respondent twice in the 2001-2002 school year. Given Respondent's status as a tenured teacher and Mrs. Clark's "concerns over the years with her performance," by evaluating Respondent in the fall, Mrs. Clark would be able to give Respondent notice of the areas in which she still needed to improve. During the period between the fall evaluation and the spring evaluation, Respondent would have an opportunity to work to improve in those areas.2/ The ratings assigned to Respondent's performance on each of the Evaluation Forms are based on data that is collected by Mrs. Clark through her observations and while "walking into [the] classroom on a regular basis." The Administrative Complaint alleged that Respondent's evaluations for the 1998-1999 through the 2001-2002 school years indicated that she needed to improve in specified areas under the following categories: Category II, Professional Behavior; Category III, Techniques of Instruction; and Category IV, Classroom Management.3/ Although Respondent worked at Colson during the 2002-2003 School year, there is no evidence that she was evaluated that year as required by law. If an evaluation was completed for that school year, the Administrative Complaint does not allege that the evaluation indicated any areas in which Respondent needed to improve. Professional Behavior The Administrative Complaint alleges that Respondent received several evaluations from 1999 through 2002 that indicated she needed to improve in the following areas under the Professional Behavior category: 1) observes confidentiality related to students; 2) works cooperatively and supportively with school staff; and 3) responds reasonably to and acting appropriately to constructive criticism. With regard to the first area of concern, "observes confidentiality related to students," none of Respondent’s evaluations for the relevant time period, 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, indicated that she needed to improve in that area. In fact, contrary to the allegations in the Administrative Complaint, all five of Respondent's evaluations for that time period indicate that her performance in that area was rated as "satisfactory." The second area under Professional Behaviors in which it is alleged that Respondent's evaluations indicated she needed to improve is "works cooperatively and supportively with school staff." Respondent's evaluations for her first three school years at Colson--1998-1999, 1999-2000 and 2000-2001--reflect that her performance in the area, "works cooperatively with school staff," was "satisfactory." However, after receiving "satisfactory" ratings in this area for three consecutive years, for the first time, Respondent's evaluation for the 2001-2002 school year indicated that Respondent needed to improve in this area.4/ The evaluations gave no reason for the "needs improvement" rating in the area, "works cooperatively with school staff," on Respondent's December 2001 and April 2002 evaluations. Although no specific basis for the rating is given on the evaluation, it is noted that these evaluations coincide with the area supervisor's observations. The third area under the Professional Behavior category in which it is alleged that Respondent received several evaluations that indicated she needed to improve is the area, "responds reasonably to and acts appropriately upon constructive criticism." Contrary to this allegation, none of Respondent's evaluations indicated that she needed to improve in this area. Rather, Respondent's performance in the area, "responds reasonably to and acts appropriately upon constructive criticism," was rated as "satisfactory" on all five of the evaluations she received during the relevant time period. Techniques of Instruction The Administrative Complaint alleges that Respondent received several evaluations that indicated she needed to improve in the following areas under the Technique of Instruction category: (1) uses instructional time efficiently; presents subject matter effectively; and (3) uses praise appropriately. Respondent's evaluations for the 1998-1999, 2000-2001, and 2001-2002 school years indicated that Respondent needed to improve in the area, "uses instructional time efficiently." As a possible rationale for the rating assigned in the 1998-1999 evaluation, Mrs. Clark wrote on the evaluation, "I am concerned about the slow pace of her lesson as well as the pacing through reading." The evaluations for the 2000-2001 and the 2001-2002 school years gave no rationale for the "needs improvement" rating in the area, "uses instructional time efficiently." Additionally, there is no indication that Mrs. Clark told Respondent the basis of the rating or offered any recommendations as to how Respondent could improve in this area. Upon Respondent's receiving the December 2001 and the March 2002 evaluations, she requested, in writing, a detailed written explanation of the basis for each of the "needs improvement" ratings, which included the area, "uses instructional time efficiently." There is no evidence that Mrs. Clark ever provided the requested explanation. Additionally, the evidence does not establish a basis for the "needs improvement" rating in this area. The next area at issue under the Techniques of Instruction category is, "presents subject matter effectively." Respondent's evaluations for the 1999-2000 and the 2000-2001 school years indicate that Respondent needed to improve in this area. However, neither the evaluation, nor any evidence at the hearing, offered or established a basis for this rating. On Respondent's evaluations for the 1998-1999 school year, and most recently for the 2001-2002 school year, her performance in the area, "presents subject matter effectively," was rated as "satisfactory." Clearly, the "satisfactory" ratings on the December 2001 and March 2002 evaluations, which were for the 2001-2002 school year, marked an improvement over Respondent's ratings in that category for the immediate prior two school years. Finally, it is alleged that the third area under the Techniques of Instruction category in which Respondent's evaluations indicated she needed to improve is, "uses praise appropriately." Respondent's evaluation for 1998-1999, her first year at Colson, indicated that she needed to improve in this area. The next three school years, however, Respondent's performance in this area improved to "satisfactory," as reflected by the four evaluations for the 1999-2000, 2000-2001, and 2001-2002 school years. Classroom Management Under the category, Classroom Management, it is alleged that Respondent's evaluations indicated that she needed to improve in the area, "enhances and maintains students' self- esteem." On Respondent's evaluations for the 1998-1999 and the 1999-2000 school years, her first two years at Colson, Respondent's performance in the area, "enhances and maintains students' self-esteem," was rated "satisfactory." Respondent's evaluation for the 2000-2001 school year indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. It is specifically found that the Administrative Complaint makes no allegations regarding the "unsatisfactory" rating. Accordingly, except for limited purposes, issues related to that rating will not be addressed. Respondent's performance in the area, "enhancing and maintaining students' self-esteem," improved in the 2001-2002 school year from "unsatisfactory" to "needs improvement," as reflected in both her December 2001 and April 2002 evaluations. Instructional Effectiveness The Administrative Complaint does not allege that Respondent's evaluations reflect that she needs to improve in the Instructional Effectiveness category. However, in order to present a more complete picture of Respondent's performance, as rated on her evaluations, this category and Respondent's ratings thereunder are considered. The Instructional Effectiveness category includes only one area, "promotes academic learning which results in improved student performance."5/ This area is concerned with and assesses whether actual learning is taking place as a result of the teacher's instruction. 39. For the 1998-1999, 1999-2000, 2000-2001, and 2001-2002 school years, Respondent's performance in the area, "promotes academic learning which results in improved student performance," is rated as "satisfactory." Overall Rating Category Respondent's "overall rating" in all five of her evaluations for the 1998-1999, 1999-2000, 2000-2001, and 2001- 2002 was "satisfactory." 6/ Transfer of Student to Respondent's Class (January 2001) In January 2001, a student, F.R., was transferred to Respondent's class from another first grade class because of his behavioral problems. When such a transfer takes place, the teacher to whom the student is being transferred is given prior notice that the student is being assigned to her class. In this instance, that was not done. Respondent was not informed in advance that F.R. was being transferred to her class. On the first day the students returned to school from winter break, F.R. just "showed up" in Respondent's class. Later, Respondent was told that the child was transferred to her class because he was having peer conflict problems, and, as a result, he was acting out. Respondent was told that the student’s acting out behavior included such things as spitting on children, stabbing children with forks, knocking things off the children's desks, and having outbursts. Respondent thought this was a new chance for the child, and she attempted to make the new class assignment work. For example, rather than isolate the child, as his former teacher had recommended, Respondent assigned F.R. to a seat between two very well-behaved little girls, who she knew would never say anything mean to him. Despite Respondent's efforts to work with F.R., he exhibited lashing out and angry behaviors. Due to F.R.'s exhibiting lashing out behavior, Respondent was concerned for the safety of the other students in the class. In January or early February 2001, Respondent shared her concern with Mrs. Clark and asked that F.R. be removed from her class. Mrs. Clark responded that F.R. was just a little boy and said, "Let's see how he does." No offers for assistance were made, and Respondent felt that her request was simply ignored. Later, in January or early February 2001, as Respondent's class lined up and walked to the lunchroom, F.R. deliberately "high stepped and slid on the heels" of the child in front of him. When Respondent asked F.R. to stop, he just laughed, looked at Respondent, and repeated the behavior. Respondent told F.R. to stand out on the side of the line and walk with her. At first he complied, but then he started to get back in the line. Respondent then told F.R., "You're walking with me." After F.R. ignored Respondent, she took his hand so that he could walk with her. F.R. then yanked and pulled Respondent's fingers back, kicked Respondent "really hard" in the upper ankle, and "took off running." Respondent reported the incident to Mrs. Clark and the vice-principal and completed an incident report, reporting her injury and indicating her belief that F.R.'s behavior described in paragraph 44 constituted an assault/battery. After the incident, Respondent again asked Mrs. Clark to transfer F.R. from her class. Mrs. Clark never responded to Respondent's request. In fact, Mrs. Clark never talked to Respondent about the incident. Some time after the February 21, 2001, observation discussed below, there was a second incident where F.R. was physically aggressive toward Respondent. F.R. ran out of the lunchroom to return to the classroom to get the check he had forgotten. Concerned about his past behavior of destroying and "messing up" the other children's belongings, Respondent went to get F.R. Before Respondent could get to the classroom, F.R. had gotten the check and was running back to the lunchroom and toward Respondent. Respondent stuck her arm out to stop him and he continued running around her. Once in the lunchroom, Respondent "pulled" or "grabbed" the check from F.R.'s hand and asked the aides in the lunchroom to call Mrs. Clark. F.R. then seemed to explode, and he began punching Respondent with his fists and biting her. By the time the assistant principal got to the lunchroom, four students had pulled F.R. off Respondent, and Respondent was holding F.R.'s hand. When the vice-principal arrived, she did not discuss the incident with Respondent, but began screaming and told Respondent, "Go, get out of here, leave!" Following the lunchroom incident, Respondent filed another assault report and, for the third time, asked Mrs. Clark to transfer F.R. from her class. After there was no response to her verbal request, a union representative advised Respondent to make the request in writing. Initially, Mrs. Clark denied the request because it was not on the proper form, but once Respondent made the request on the appropriate form, F.R. was transferred from her class. Prior to the requests related to F.R., Respondent has never requested that a student be transferred from her class. Observations of Area Supervisor Ms. Daryl Saunders, an area supervisor for the School District, went to Respondent's classroom on five different occasions between February 21, 2001, and March 21, 2002, twice during the 2000-2001 school year, and three times during the 2001-2002 school year, to conduct observations. On a visit in February 2002, Ms. Saunders did not conduct an observation. With the exception of the first visit to Respondent's classroom, all of Ms. Saunders' visits were for the purpose of observing Respondent. Of the four times Ms. Saunders went to observe Respondent, she actually conducted observations three times. First Observation (February 21, 2001) Ms. Saunders' first visit to Respondent's classroom was on February 21, 2001. At the request of Mrs. Clark, Ms. Saunders went to Respondent's classroom to observe a student, F.R., who had been displaying inappropriate behavior in class and is described above.7/ During the time Ms. Saunders observed F.R., he did not have any outbursts, engage in any physically aggressive behavior, or display any disruptive or inappropriate behaviors. Ms. Saunders noted that the student delayed starting his assignment and took breaks between work, but did not bother any other student. Based on her observation of F.R. and the manner in which Respondent communicated with him, Ms. Saunders wrote in the summary letter to Mrs. Clark, "I believe F.R. is trying to survive in a room where he feels he is not valued." While Ms. Saunders was observing F.R., she also observed Respondent teaching and interacting with the students. Ms. Saunders was particularly concerned with Respondent's frequent verbal reprimands that were audible to the entire class. During the observation, Ms. Saunders also noticed that Respondent seemed to be easily frustrated and that when communicating with students, her voice vacillated between a friendly tone to an aggressive tone. Ms. Saunders expressed this and other concerns, not relevant to this proceeding, to Mrs. Clark in a letter dated February 22, 2001. According to the letter, a verbal reprimand to a particular student in front of the entire class is "damaging to [a] student's self-esteem." Ms. Saunders further noted that "considering the environment, I was surprised there were no behavioral issues while I was present." In the February 22, 2001, letter to Mrs. Clark, Ms. Saunders recommended that "we provide [Respondent] with some assistance so that the classroom environment is more conducive for instruction and learning." As a means of supporting Respondent in this effort, Ms. Saunders recommended that Mrs. Clark "have [Respondent] take two courses through the staff development office." The two classes that Ms. Saunders recommended were Cooperative Discipline and Effective Teaching Strategies. Finally, Ms. Saunders' letter stated, "the Language Arts Frameworks document should be reviewed with [Respondent]." There is no indication that Mrs. Clark discussed these recommendations. Second Observation (May 7, 2001) At Mrs. Clark's request, Ms. Saunders visited Respondent's classroom on May 7, 2001, to observe Respondent's teaching practices. This was about two weeks after Respondent received her evaluation for the 2000-2001 school year, which had rated her performance as unsatisfactory in the area of "enhancing and maintaining student's self-esteem." Pursuant to an earlier suggestion by Ms. Saunders, Respondent allowed herself to be videotaped in order that she could better critique her own behavior in the classroom. To implement this recommendation, the school's media specialist was in the classroom to set up the video equipment on the day of Ms. Saunders' observation. Soon after Ms. Saunders arrived, the media specialist asked Respondent if she should put the tape in the video recorder. Respondent answered, "Please, I don't want to be accused of using three minutes of my time up." Ms. Saunders believed that Respondent's tone of voice was "unprofessional" and that the comment was directed at her. During the May 7, 2001, observation, a student who was speaking to other students in a group had her back to them. Respondent's voice "became aggravated" as she told the student to turn around. Respondent placed her hands on the student's shoulders and physically turned her, but did not do so forcibly. During the May 7, 2001, observation, Ms. Saunders noted improvement in Respondent's communication with her students. In her written summary of the observation dated May 16, 2001, Ms. Saunders wrote: Based on that first encounter [February 21, 2001], I would say my greatest concern was how you communicated with both students and adults. However, this time your demeanor in front of the children was quite different than when I last observed in your classroom. I believe having the video camera present helped to keep you focused on appropriate communication with the children. I was pleased to hear more of a pleasant tone. Ms. Saunders' summary also stated that she counted four times when Respondent appeared to become frustrated and her tone of voice changed to a negative one. Ms. Saunders' summary of the May 7, 2001, observation included the following recommendations: One way to support and assist you regarding classroom environment, instruction and planning would be to have someone review with you, the six domains from the Florida Performance Measurement System. This information is based on research and would be beneficial to again cover. In addition, I recommend that you attend training provided by the elementary education department specifically in the area of writing. Enrollment can be done on-line. . . . There are many courses offered this summer. The Language Arts Frameworks document should also be reviewed. This will provide information about our district's curriculum and the writer's workshop model. Other staff development offerings related to classroom management are offered periodically through the staff development office. I suggest you take one of their courses to assist you with classroom management. You can register on line any time. . . . In the May 16, 2001, summary, Ms. Saunders notified Respondent that she planned to observe Respondent's classroom again soon. Additionally, Ms. Saunders indicated that she expected to see "appropriate and timely instruction and activities based on student need and planned from grade level expectations." Third Observation (December 6, 2001) Ms. Saunders conducted the third observation on December 6, 2001, seven months after the previous observation. Ms. Saunders summarized her observations in a letter dated December 17, 2001. In the letter, Ms. Saunders advised Respondent, for the first time, that the December 6, 2001, observation was part of a plan to assist Respondent with teaching practices. On December 6, 2001, Ms. Saunders arrived at Respondent's classroom at 8:30 a.m. and stayed until 9:10 a.m., when the children left the room for an activity. During the 40-minute observation, Ms. Saunders heard Respondent communicating with students and observed her conducting a review of telling time. Ms. Saunders was complimentary of Respondent's review of telling time. In the written summary to Respondent, Ms. Saunders wrote: You try hard to provide ways for students to remember abstract concepts. You use pneumonic devices, short stories, rhymes and other ways to assist with memorization. By calling the numbers bases and relating the time to the name of the base they passed, students more accurately read time when the short hand falls somewhere between two numbers. This seemed quite effective. Ms. Saunders observed an incident which she perceived to be negative. There was a student who was off task. Respondent directed her attention to the student and asked the student, "Would your mother [or family] be proud of you?" Ms. Saunders believed that when Respondent made this statement, her voice "sounded with disapproval." Ms. Saunders suggested that in the situation described in paragraph 66, Respondent should have "encouraged" proper behavior by asking the student a question that would have him participate so that he becomes on task rather than off task. In another situation, Ms. Saunders observed Respondent interact appropriately and effectively with a student she was reprimanding. In that case, Respondent asked the student, "What time is it?" Before that student could answer, another student shouted out the answer. Recalling Respondent's positive response in that situation, Ms. Saunders stated the following in the December 17, 2001, summary: A boy shouted out the answer and you began to reprimand him. You began to speak, stopped yourself, and continued with this carefully crafted sentence. "Tell me the rule about calling out." It was nice to see you stop yourself in mid-stream, rethink a way to correct this misconduct while still preserving the child's dignity. Based on the December 6, 2001, observation, Ms. Saunders had two areas of concern, only one of which is relevant in this case. That area relates to Respondent's "appropriate use of instructional time." Ms. Saunders' concern is stated in the summary as follows: In my opinion, a second area of concern relates to planning and appropriate use of instructional time. I entered your room at 8:30 and the instructional day begins at 8:00 a.m. Instruction in your room did not begin until 8:44 and the fifteen minutes suggested for calendar math was stretched to 21 minutes. I suggest you utilize time more wisely by beginning calendar math immediately after announcements. Then spend the rest of the morning on shared, guided and independent reading when youngsters are fresh and ready to learn. Beginning instruction nearly 45 minutes after the day begins will allow you to cover all the curriculum. Although the "instructional day," to the extent that term refers to Respondent's teaching a lesson to the class, did not begin at 8:00 a.m., or soon thereafter, there was a reasonable explanation for the delay. First, three students were assigned to Respondent's class that day because their regular teacher was absent. Prior to beginning instruction, Respondent met with those students, asked them their names, assigned them desks, and explained her classroom management system. Respondent's classroom management system involved giving each student a certain number of clothes pins at the beginning of the day. During the school day, the students could lose and/or earn clothes pins, depending on their conduct. The second reason for the delay in beginning the instructional day was that several students in Respondent's class had been allowed to go to the media center to "Santa's Book Fair." As Ms. Saunders noted in her written summary, several of Respondent's students did not return to the classroom from the book fair until 8:36 a.m. In light of the foregoing circumstances, it was reasonable that Respondent did not begin the "instructional day" at 8:00 a.m., or immediately after announcements were made. Admittedly, Ms. Saunders did not know what, if any, instructions or directions Respondent gave to students prior to 8:30 a.m. However, when Ms. Saunders entered Respondent's classroom, the students were actively engaged in various activities. For example, one student was working on math worksheets. Another student was at the computer taking an Accelerated Reading test. Respondent was working with the student at the computer. In addition to Ms. Saunders' concern that the instructional day did not begin until 8:44 a.m., she believed that Respondent spent too much time teaching the "calendar math" activity. Respondent began the activity at 8:44 a.m., and completed it at 9:05 a.m. Even though Ms. Saunders complimented Respondent on her presentation of the activity, as discussed in paragraph 65, she criticized Respondent for spending too much time teaching or reviewing the lesson. According to Ms. Saunders, the "suggested" time for "calendar math" was 15 minutes, but Respondent "stretched" the activity to 21 minutes, which was six minutes longer than the "suggested" time. Ms. Saunders offered no explanation of why or how Respondent's extending the calendar math activity by six minutes was not an "appropriate use of instructional time." At 9:10, a.m., five minutes after the calendar math lesson, Respondent's students had to leave the classroom to attend a health presentation. The five minutes between the end of "calendar math" and when the children left the classroom for the health presentation, allowed time for the children to return to their seats and for Respondent to pass out name tags to the students and have them line up before leaving the room. Ms. Saunders offered no suggestions as to a more appropriate or acceptable way Respondent could or should have used the extra six minutes that Respondent used teaching the calendar math activity. Ms. Saunders summarized the December 6, 2001, observation and made recommendations in a letter dated December 17, 2001. Based on Ms. Saunders' concerns about Respondent's teaching practices, Ms. Saunders recommended that Respondent "have someone review with [her] the six domains from the Florida Performance Measurement System." Also, she recommended that Respondent take training provided by the elementary education department and a classroom management course, both of which were offered "periodically" through the staff development office. Attempted Observation (February 2001) On an unspecified day in February 2002, Ms. Saunders went to Respondent's classroom to conduct her fourth observation. After Ms. Saunders entered the classroom, Respondent told her that she had no notice of the observation. Ms. Saunders then advised Respondent that Mrs. Clark knew that Ms. Saunders would be observing Respondent's class that day, but that "neither of us [Saunders nor Clark] chose to make you [Respondent] aware of the visitation." Respondent espoused the view that she should have received notice of the observation. Ms. Saunders disputed Respondent's view that she should have been given notice and indicated that the observation was part of the assistance plan laid out in May 2001. Respondent replied that an assistance plan could only last 90 days and, thus, this observation could not be part of any such plan. Ms. Saunders then asserted that she could do an observation any time as part of her normal duties. Respondent disagreed and requested that Ms. Saunders provide her with a written explanation of the reason why Ms. Saunders was visiting the class, the instrument she would be using, what she would be observing, and how long she would be staying. As the verbal interchange proceeded, Ms. Saunders thought that Respondent's voice became more aggressive and that she was also getting upset. Because Respondent's students were in the classroom, Ms. Saunders decided to leave the classroom and return at another time. Although students were in the classroom during the verbal exchange concerning whether Ms. Saunders' visit was authorized, there is no evidence that the students heard the conversation. Fourth Observation (March 21, 2002) On March 21, 2002, Ms. Saunders conducted an observation in Respondent's classroom. Upon Ms. Saunders' entering the room, Respondent advised her that she had no notice that Ms. Saunders was coming to her class. Respondent also told Ms. Saunders that the students were taking a school-wide writing assessment. Ms. Saunders acknowledged that, but still indicated that she would be seated and conduct an observation. Respondent then approached Ms. Saunders and asked why she was in the class, what instrument she was using, and what she was observing. Ms. Saunders reiterated her prior position that she was there as part of the assistance plan and that she would be taking anecdotal notes. Respondent then asserted her earlier position, that an assistance plan was only for 90 days. Consistent with Ms. Saunders' previous recommendation that Respondent tape herself in class as a way to critique herself, Respondent told Ms. Saunders and the class that she was turning on the tape recorder. Ms. Saunders began the observation at or about 8:58 a.m., and ended it at 9:16 a.m. In all, the observation lasted only about 18 minutes. During most of that time, Respondent's students were completing a school-wide writing assessment. As students finished the writing assessment, Respondent gave them books to read silently, while the other children continued to work on the writing assessment. Ms. Saunders summarized the March 21, 2002, observation in a letter dated April 18, 2002. Due to the duration of the observation, 18 minutes, and the fact that the students were taking a writing assessment, Ms. Saunders reported only a few specific observations. None of those observations concerned or were related to Respondent's teaching techniques or classroom management.8/ In the April 18, 2002, letter, Ms. Saunders summarized the March 21, 2002, observation and made conclusions. In the letter, Ms. Saunders stated she continued to see the "same behaviors" from Respondent. She further stated, Each time I visit your classroom I continue to see the same behaviors from you. Though discussion has occurred regarding ineffective practices, visitation were made to a number of other classrooms at Yates Elementary, suggestions regarding inservice courses have been made, yet your practices have not changed. I continue to see an emphasis on students being silent unless called upon. I continue to hear you speak gruffly to students. I continue to see you punish students for very minor infractions like wiggling or whispering. I continue to see you isolate students from the group. I continue to see you go over concepts, like vocabulary orally in order for students to memorize things rotely. I continue to see calendar math exceed the 15 minutes it is intended to occupy of the mathematics instructional time. I continue to see only one student engaged at a time. It was the intention of the assistance plan to have you reevaluate some of your ineffective practices and work to make some changes. I have yet to witness any of that nor do I think you are even trying to make strides toward improvement. Despite her recitation of areas in which Respondent still needed to improve, Ms. Saunders offered no recommendations in the April 18, 2002, summary letter to assist Respondent. However, Ms. Saunders stated that she "plan[ned] to make an unannounced observation in [Respondent's] class again soon," but she never did. The conclusions in Ms. Saunders' April 18, 2002, letter are inconsistent with some of her earlier observations discussed in paragraphs 59, 65, and 68 above. Moreover, there was no connection between the conclusion Ms. Saunders articulated in the summary letter and what she observed on March 21, 2002. Area Supervisor's Criticism of Respondent's Reprimand Method Ms. Saunders was critical of the way Respondent reprimanded students. During Ms. Saunders' observations, Respondent sometimes would call the name of the child who was being reprimanded and tell him what he should or should not be doing. At the hearing, Ms. Saunders testified to maintain order in the classroom, Respondent should have used "public praise" and "private criticism." Notwithstanding this position, Ms. Saunders admitted that this method or principle is not an established policy and procedure of the School District. While Ms. Saunders testified that the "public praise, private criticism" principle is simply an "educational belief that many people subscribe to," she acknowledged that other models exist. There was no evidence presented at the hearing that Ms. Saunders ever specifically discussed the "public praise, private criticism" philosophy that she believed Respondent should have used in the classroom. Observations of the School Principal Mrs. Clark frequently observed Respondent in the classroom as part of her routine of visiting all the classrooms at Colson. During her observation of Respondent, Mrs. Clark saw and heard Respondent sometimes use a "harsh desist" in reprimanding students. According to Mrs. Clark, the term "harsh desist" means "harshly reprimanding a child to stop doing something." Mrs. Clark described an example of a "harsh desist" by Respondent's saying, "Shhhh" to the class in a loud way, and talking to children in a way that was "derogatory." Mrs. Clark believed that the children were impacted by the way Respondent spoke to them. She based this belief on the expressions she saw on some of the children's faces. Mrs. Clark testified, "In some instances, they [the students] would cringe." Mrs. Clark testified that she talked to Respondent about her "harsh desist," but Respondent did not change this classroom management method. These discussions were not documented, and no reference to this issue was ever noted on Respondent's evaluations. The record fails to establish when or how often Mrs. Clark observed Respondent engaging in a "harsh desist," to whom any particular "harsh desist" was directed, and if and how the "harsh desist" affected the student. Mrs. Clark testified that she observed situations in which she observed Respondent talk to students in a derogatory manner. In one instance, the student referred to in paragraph 41 above, who had been transferred to Respondent's class because of behavioral problems he was having in another class, left Respondent's classroom without permission and was returned to the room by Mrs. Clark. The student told Mrs. Clark that he had left the room to look for a pencil or scissors. Mrs. Clark asked Respondent if the student could borrow one from another student or if she would give him the tool that he needed. Respondent said she would not give him the particular tool. Respondent continued, "He breaks them all the time. He doesn't deserve them." Although students were in the classroom when Respondent made the comments, there is no evidence that they heard the comments. The other incident in which Mrs. Clark described Respondent as using derogatory language when talking to a student involved T.B., a student in her class. On an unspecified date, Respondent was walking down the hallway with her students, taking them to the buses. Respondent was holding T.B. by his arm, presumably for misbehaving. At the time, Mrs. Clark was in the hallway, but some distance away. When Respondent saw Mrs. Clark in the hallway, she told T.B., "If you don't behave, you're going to get a referral to that lady over there," pointing to Mrs. Clark. Mrs. Clark testified that there is nothing wrong with reminding a child that he could have to go the principal's office if he or she misbehaves, "if it [is] handled in the appropriate way." The clear implication was that the manner in which Respondent handled the situation described in paragraph 98 was inappropriate. However, no evidence was presented to establish the appropriate way to remind the student that his behavior needs to improve and that there are consequences for misbehavior. Recommendations of Mrs. Clark Respondent's 2000-2001 evaluation indicated that her performance in the area, "enhances and maintains students' self-esteem," was unsatisfactory. To address this rating, Mrs. Clark issued a letter to Respondent which made two recommendations to assist Respondent in improving in this area. The letter is referred to on the evaluation and was given to Respondent on or about April 24, 2001, the day she received the 2000-2001 evaluation.9/ The first recommendation was that Respondent attend a Cooperative Discipline Workshop that was offered by the School District or "something similar to that that was offered by the district." The other recommendation was that Respondent go and observe behavior management in classrooms at other schools. No specifics were given as to who would schedule the time, place, and number of observations. With regard to the classroom management course, no information was provided as to what, if any, approval would be needed prior to taking the course. In neither instance was a time specified that Respondent would have to complete the observations and/or the classroom management course. During Respondent's tenure at Colson, the only written recommendations she received from Mrs. Clark were the two made in the letter issued to Respondent. As reflected on the 2000-2001 evaluation, Mrs. Clark issued the letter to address the "unsatisfactory" rating Respondent received in that evaluation. In such a case, a tenured teacher who receives an "unsatisfactory" rating, a letter and/or form of assistance is required to be provided pursuant to Section 1012.34(3)(d), Florida Statutes. Respondent's Efforts to Comply With Assistance Plans and/or Recommendations In an effort to comply with Mrs. Clark's recommendation that she observe other classes, Respondent asked several teachers on her first-grade team, including one who was nationally-certified, if she could observe them. Some of these teachers had been held out by Mrs. Clark as using behavioral models that were ones that Respondent might use in her class. All of the teachers agreed to allow Respondent to observe their classes, but Mrs. Clark denied Respondent's request to observe any of the teachers at Colson. Eventually, someone, likely Ms. Saunders or Mrs. Clark, scheduled an observation for Respondent at Yates Elementary School (Yates). On an unknown date between May 7, 2001, and December 6, 2001, Respondent went to Yates to observe several first-grade classes pursuant to Mrs. Clark's April 24, 2001, recommendation. Ms. Saunders accompanied Respondent to the class for the observations. As Respondent and Ms. Saunders went to observe in the various classrooms, it appeared to Respondent that the teachers in those classrooms had no prior knowledge of the observations. During the observations at Yates, Ms. Saunders directed Respondent to write down anything positive she saw regarding classroom management, as well as anything she found pedagogically unsound.10/ Ms. Saunders referenced and discussed Respondent's observations at Yates in the summary letter dated December 17, 2001. In that letter, Ms. Saunders recalled the following: During the visit to Yates, we witnessed some wonderful classroom strategies and we also saw some things that perhaps would not be helpful. I know, based on our conversation, that you saw some things that you might like to try implementing. I hope that you will continue to reflect on that day and try some of the things you think might work well in your room. Ms. Saunders also noted in the December 17, 2001, letter that at the time of the visit to Yates, she asked Respondent to write a plan that included trying or applying some of the classroom management strategies that they witnessed. Respondent complied with this directive as reflected in Ms. Saunders' letter in which she stated, "A copy of that plan was to be given to Mrs. Clark[,] and I am aware that you submitted something to her." As requested by Ms. Saunders, Respondent submitted a classroom management plan to Mrs. Clark based on what she observed at Yates that she could implement in her classroom. However, there is nothing in the record to indicate whether Respondent's plan was ever reviewed or critiqued by either Mrs. Clark or Ms. Saunders. After Mrs. Clark recommended that Respondent take a classroom management course, she attempted to do so, but was unsuccessful. Respondent's initial failure to take the classroom management course after the April 2001 evaluation, was based on a misunderstanding, miscommunication, and/or no communication between Mrs. Clark and Respondent. Later, Respondent's efforts to take a classroom management course were thwarted by Mrs. Clark. The misunderstanding, miscommunication, and/or lack of communication between Mrs. Clark and Respondent is evident. Almost eight months after Mrs. Clark initially recommended that Respondent take a classroom management course, she wrote in the "comment section" of Respondent's December 19, 2001, evaluation that she was "not sure" if Respondent had taken the course. In response, Respondent wrote on the same evaluation, "It was my understanding that a workshop would be scheduled for me during the school year." Mrs. Clark testified that Respondent had "repeatedly kept asking" for which workshop Mrs. Clark had signed her up. Based on the apparent misunderstanding discussed in paragraph 109, Respondent selected at least two different classroom management courses. She then requested Mrs. Clark's consent, because the course required payment of a fee and a substitute teacher for the time Respondent would be attending the course. Both courses were approved by the Hillsborough County School Board. Although in the 2001-2002 school year, Respondent made several requests to take a management course, Mrs. Clark denied all the requests, indicating that no money was available. In one case, a person from the School District office called Respondent and told her that no money was available for her to attend the courses she had requested. The payment for one of the courses was about $135.00 and required that a substitute teacher be hired to cover Respondent's class on the day of the course. Having been unsuccessful in obtaining permission or approval to attend two School Board-approved courses, on September 20, 2002, Respondent wrote an e-mail letter to Mrs. Clark regarding Respondent's efforts to take a classroom/behavior management course. In the e-mail, Respondent indicated that she had looked to take the recommended course on a professional study day (when students are not present), but had not found any such course being offered. In light of Mrs. Clark's and/or the School District's failure to approve a course for Respondent to take, Respondent requested that Mrs. Clark provide Respondent with the name of the classroom/behavior management course that Mrs. Clark wanted her to take and the date and time of such course. There is no evidence that Mrs. Clark ever responded to Respondent's September 20, 2002, e-mail or ever provided Respondent with the name of a classroom management course to attend. Moreover, no evidence was presented that the School District actually offered the recommended classroom management course during the relevant time period. Despite the recommendation that Respondent take the classroom/behavior management course, she was not provided with the assistance and in-service opportunity to help correct or improve the noted performance deficiency. Nonetheless, through her own effort, she increased her performance area, "enhances and maintains students' self-esteem," from "unsatisfactory" in the 2000-2001 school year to "needs improvement." Incidents Involving Respondent and School Principal and Staff First Incident (January/February 2001) In January or February 2001, during the lunch break, Vicki Davis, one of the other first-grade teachers, was sitting near Respondent and noticed that Respondent was writing in a notebook. Ms. Davis then asked Respondent, "What are you doing? Writing about kids or something?" Respondent did not elaborate, but told Ms. Davis that it was a behavior book. Ms. Davis was concerned because she saw her name in the book, but beyond that, she could not say what was in the book. Exactly what Respondent was writing in the "behavior book," is unknown, but this incident occurred soon after the student referred to in paragraph 41 was transferred from Ms. Davis' class to Respondent's class. Respondent implied that she was writing down observations about the child. Even though the precise contents of the "behavior book" were not clearly visible, Ms. Davis felt uncomfortable when she saw what she believed to be her name in the "behavior book." Second Incident (July 2001) In July 2001, when school was not in session, Respondent telephoned the school and asked Mrs. Clark to provide her with a report that Ms. Saunders had prepared. Before leaving the school, Mrs. Clark advised Jennifer Connolly, her secretary, that Respondent was coming to get the report and told Ms. Connolly to put the report in Respondent's mailbox. When Respondent arrived at Colson, she checked her mailbox, but did not see the report that she had come to retrieve. At the time, no one was in the front office area so Respondent went into Mrs. Clark's office and looked on her desk for the document. While Respondent was in Mrs. Clark's office looking through papers in an effort to locate Ms. Saunders' report, Ms. Connolly saw Respondent and asked why she was in the office. After Respondent explained that she was looking for Mrs. Saunders' report, Ms. Connolly told Respondent the report was in Respondent's mailbox and to leave Mrs. Clark's office. Ms. Connolly left the office and walked down the hall. After Ms. Connolly left Mrs. Clark's office, Respondent turned out the light in Mrs. Clark's office and closed the door to the office as she exited. By the time Respondent got to her mailbox, Mrs. Saunders' report was on top of the stack of mail in Respondent's mailbox. After being informed about Respondent's going into her office, Mrs. Clark contacted the School District's Professional Standards Office. An investigation was conducted and based on the findings, a letter was issued to Respondent. It is unknown if the letter was a warning, reprimand, or other type of communication since the letter was not offered as evidence at this proceeding. There is no indication that Respondent was doing anything in Mrs. Clark's office other than looking for the report that she came to the school to retrieve; the report that Mrs. Clark had expected her to pick up. Nonetheless, Respondent's decision to go into the principal's office, without permission, reflected poor judgment on her part. This, however, was an isolated incident and is not indicative of Respondent's usual judgment. Except for this incident, Respondent's record indicates that she usually exercised good judgment as shown by her evaluations for the relevant time period. For example, for the three school terms immediately prior to the July 2001 incident, Respondent's performance in the area related to a teacher's judgment under the Professional Behavior category, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory."11/ The only evaluation that indicated Respondent "needed to improve" in that area was the December 2001 evaluation, the first evaluation she received after the July 2001 office incident. However, in Respondent's very next evaluation dated April 24, 2002, her performance in the area, "demonstrates logical thinking and makes practical decisions," was rated as "satisfactory." Third Incident (2001-2002 School Term) In or about the 2001-2002 school year, Respondent brought a tape recorder to a team meeting. When Ms. Davis, one of the team members, saw the tape recorder, she felt uncomfortable and told Respondent to turn off the tape recorder.12/ Ms. Davis knew that "something was going on between [Respondent] and Mrs. Clark" and seemed to suspect that Respondent's bringing the tape recorder into the meeting was somehow related to that. However, Ms. Davis did not want to be a part of that and told Respondent, "This [meeting] is not about anything. We're working together as a team." Respondent immediately complied with Ms. Davis' request and turned off the tape recorder. After that one incident, Respondent never again brought a tape recorder to a team meeting. Fourth Incident (February 25, 2003) On or about February 25, 2003, as part of her usual routine of visiting classrooms, Mrs. Clark went to Respondent's classroom, entering from the back door. At the time, Respondent was sitting with two students, working with them. When Respondent saw Mrs. Clark, she got up from her seat and walked over to where Mrs. Clark was standing. Respondent then asked Mrs. Clark, "Did you leave right after us?" Mrs. Clark correctly understood, and Respondent confirmed that the question referred to Respondent's grievance hearing that was held the previous day and attended by Respondent and her attorney, as well as Mrs. Clark and the area supervisor. Respondent apparently thought Mrs. Clark indicated that she had left immediately after the grievance hearing. Respondent challenged Mrs. Clark and indicated that Respondent and her attorney had waited outside for Mrs. Clark for 15 minutes. Respondent then moved closer to Mrs. Clark and whispered in her ear. Mrs. Clark understood Respondent to say, "You're a liar. You're devious. There is a God. I'm not through with you yet." Respondent denied that she made these statements. Given the conflicting testimony of Mrs. Clark and Respondent, both of whom appeared to be credible witnesses, there is no clear and convincing evidence that Respondent made the statements. Nonetheless, it is found that Mrs. Clark understood and believed that the statements in paragraph 130 were the ones Respondent whispered to her. Mrs. Clark responded to Respondent's statements in a voice that was not a whisper by asking, "You're not through with me yet?" According to Mrs. Clark, during this incident, she repeatedly kept turning to Respondent and kept telling her, "If you have something to say to me, we can meet in my office." There were children in Respondent's classroom during the incident described in paragraph 130, but Mrs. Clark's credible testimony was that the children could not hear Respondent's comments. Mrs. Clark described the comments Respondent whispered in her ear as "quite upsetting." While Mrs. Clark might have been upset, her conduct clearly indicated that she did not feel threatened by Respondent's comments. After the exchange between Respondent described in paragraphs 130 and 131, Mrs. Clark stayed in Respondent's classroom to continue her visit and look at the children's work. In fact, Mrs. Clark took time to talk to a student in the class who she believed was not working. Later, she asked the children about a large crayon that was on the floor. At some point during the visit, Respondent noticed that Mrs. Clark was holding something in one of her hands, both of which were behind her back. Believing that the object in Mrs. Clark's hand was a tape recorder, Respondent grabbed Mrs. Clark's hand and splayed it open in an attempt to completely display the object. As Respondent grabbed Mrs. Clark's hand, she asked Mrs. Clark if she had a tape recorder and if she were recording Respondent. Mrs. Clark stated that the object she was holding was a two-way radio. Even though the object Mrs. Clark was holding was a two-way radio, Respondent did not believe Mrs. Clark's explanation. After or as Respondent grabbed Mrs. Clark's hand, Mrs. Clark told Respondent, "Get your hands off me! Get away from me!" Respondent believed Mrs. Clark was going to strike her so she moved back, away from Mrs. Clark. Undoubtedly, Respondent's conduct, described in paragraph 134, grabbing her supervisor's hand, was inappropriate, unprofessional, and disrespectful. However, based on the record, this was clearly an isolated incident. Moreover, this conduct does not constitute any of the statutory or rule violations alleged in the Administrative Complaint. Mrs. Clark then left Respondent's classroom and continued visiting other classrooms. After completing her routine classroom visits, Mrs. Clark called the School District office to report the February 25, 2002, incident in Respondent's classroom. Respondent also called the School District office to report the incident. In addition to calling the School District Office, Respondent called a friend who was a retired teacher and reported that she believed Mrs. Clark had tried to record her and asked for advice on what she should do if Mrs. Clark returned to her room. The following day, an investigator with the School District went to the school to investigate the matter. School District Request for Fitness for Duty Evaluation By letter dated April 30, 2003, the School District referred Respondent to Dr. James Edgar, M.D., a psychiatrist, for an evaluation. In the referral letter, Linda Kipley, the general manager of the School District's Professional Standards Office, stated that the referral was due to the School District's "concerns for a pattern of personal and professional behavior which has negatively impacted her capability and competence to perform the duties and responsibilities of teaching." Ms. Kipley's letter went on to say, "After reviewing our most recent investigative report, there is a question if she is fit for her teaching responsibilities and to teach minor children." Also, Ms. Kipley requested that Dr. Edgar provide a written report of his assessment of Respondent's "capability to make sound professional judgments and her capability to safely instruct children." Opinion of James Edgar, M.D. Dr. James Edgar, who was qualified as an expert in the field of psychiatry, conducted an independent medical (psychiatric) evaluation of Respondent. Based on information provided to Dr. Edgar by School District staff, there were questions raised about Respondent's ability to safely instruct minor children and about her general mental health status. Along with the request for the evaluation, the School District provided Dr. Edgar with copies of all of Respondent's evaluations since she was employed by the School District and the February 22, May 16, and December 17, 2001, letters/reports from Ms. Saunders. For some reason, Ms. Saunders' last report dated April 18, 2002, and discussed in paragraphs 85 and 86, was not provided to Dr. Edgar. Dr. Edgar found that Respondent had normal motor activity and normal facial expressions; that she was polite and her appearance was neat; and that she was calm although anxious (which Dr. Edgar indicated was a natural reaction under the circumstances of an evaluation being ordered by her employer). He also found that Respondent's intelligence was normal, her memory was intact, her senses were good, her affect was appropriate, and there was no evidence of hallucinations. Notwithstanding the foregoing conclusions, in the "summary and recommendation" section of his report, Dr. Edgar opined, I do not feel [Respondent] is currently capable of safely instructing young children." As the basis for this conclusion, Dr. Edgar stated that when Respondent is stressed by routine events, such as constructive criticism, her ability to keep things orderly and controlled is impaired and she becomes anxious and depressed. He further stated that the combination of Respondent's "major depression and pre-existing personality disorder interfere with the usual psychological functions (i.e. judgment and problem solving ability, emotional stability, ability to conform to societal standards of behavior, interpersonal skills, integrity, responsibility, ability to cope with stressful situations, and decision making in a crisis). In the "summary and recommendation" section of Dr. Edgar's written report, he prefaces the above-quoted opinion by stating, "This summary is provisional because I have not had an opportunity to review medical records or mental health records." At the end of the report, Dr. Edgar states that "I may amend my report after reviewing the previously mentioned records." As of the date of this proceeding, Dr. Edgar had not yet reviewed any of Respondent's medical records and mental health records, although Respondent advised him that she was being treated for depression by a psychiatrist and was in counseling with a licensed mental health professional. Contrary to the School District's concern for Respondent's "competence to perform the duties and responsibilities of teaching," Dr. Edgar testified that his report made no finding that Respondent was incompetent to teach. Opinion of Gerald Mussenden, Ph.D. Dr. Gerald Mussenden was qualified as an expert in the area of psychology. On September 5 and 12, 2003, Dr. Mussenden conducted a comprehensive evaluation of Respondent to determine her overall mental functioning (i.e., whether she was mentally stable, well adjusted, and/or if she is a threat to herself or others). As part of the evaluation, Dr. Mussenden administered, among other instruments, the Child Abuse Potential Inventory, which has been developed and standardized since 1982. The Child Abuse Potential Inventory is valid in terms of content validity, construct validity, and predictive validity and is a tool used by psychologists who do testing specializing in abuse propensities. Based on the results of the Child Abuse Potential Inventory, Dr. Mussenden concluded that Respondent had no child abuse potential characteristics and was not a danger to children. Moreover, Dr. Mussenden opined that Respondent was emotionally stable, had good skills by which to relate and interact with others, and had no problems or difficulties that would endanger others around her. Dr. Mussenden's evaluation report accurately notes that at the time of the evaluation, Respondent was under the treatment of a psychiatrist and in counseling with a licensed mental health counselor. Dr. Mussenden's opinion is that this course of treatment contributed to Respondent's mental health status at the time of the evaluation. In his report, Dr. Mussenden states, "Due to their success [the psychiatrist and mental health counselor], [Respondent] is relatively well adjusted and without signs of mental difficulties." Dr. Mussenden's credible testimony was that a person can suffer from depression and still be competent to handle one's duties as a teacher. When Respondent was evaluated by Dr. Mussenden, she was taking medication for depression. The purpose of such medication is to help people suffering from depression become well-adjusted. The fact that there was no evidence that Respondent was suffering from depression during the September 2003 evaluation indicates that the medication she was taking was effective in that it masked any depression that may have been present. Dr. Mussenden saw Respondent within 60 days of the hearing and based on that visit, he did not change his opinion that Respondent posed no risk of harm to children.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that finds Respondent not guilty of the charges alleged in the Administrative Complaint and dismisses the Administrative Complaint. DONE AND ENTERED this 12th day of April, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2006.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, whether her employment with Petitioner should be terminated.
Findings Of Fact Respondent has been employed by Petitioner as a teacher for 16 1/2 years. She holds a Florida teaching certificate in the areas of specific learning disabilities and educable mental retardation. Throughout her employment by Petitioner, she has been assigned to teach exceptional student education classes. For the 1995-96 school year, she was assigned to teach a varying exceptionalities class at Winston Park Elementary School. At that school, the principal and the assistant principal have a practice of visiting every classroom every day whenever possible. The visits usually consist of a general walk-through. As a result of his visits to Respondent's classroom, Assistant Principal Polakoff, an experienced varying exceptionalities teacher, became concerned about the lack of discipline in Respondent's classroom. Respondent made a large number of referrals of students to the administrators for disciplinary action. Polakoff discussed his concerns with Respondent. In late September or early October, the administration at Winston Park Elementary School requested Rene Miscio, an Exceptional Education Program Specialist from the area office to come and assist Respondent. Miscio identified concerns with Respondent's classroom performance and gave Respondent suggestions for improving her areas of deficiency. Miscio took Respondent to a different school so Respondent could observe that teacher. Respondent later advised her administrators that she was implementing the suggestions made by Miscio. On November 2, 1995, Respondent referred a student to the office. Assistant Principal Polakoff went to Respondent's classroom and observed for 30 to 40 minutes. He wrote detailed notes while he was in Respondent's classroom and later discussed his observations with Principal Smith. They determined that Respondent's performance was deficient in three areas: behavior management, classroom management, and lesson presentation. By letter dated November 2, Assistant Principal Polakoff advised Respondent that she was moved from the development phase to the documentation phase of the Instructional Personnel Assessment System (hereinafter "IPAS") because deficiencies had been identified. In the documentation phase strategies are formulated for remediating the identified deficiencies. The goal is to provide the teacher with strategies to become successful in helping students learn. Principal Smith and Assistant Principal Polakoff worked with Respondent in writing a Performance Development Plan. Such a Plan envisions ongoing contact between the administrators and the teacher to address the teacher's deficiencies over the course of a defined time period. Respondent was given a February 29, 1996, deadline for remediating her deficiencies. Assistant Principal Polakoff began working with Respondent to develop behavior plans for specific students because of his background in exceptional student education. The administrators also assigned the exceptional student education specialist at Winston Park to observe and assist Respondent to overcome her areas of deficiency. Principal Smith also assigned Carolyn Koesten, another special education teacher at Winston Park, to "model" in Respondent's classroom from November 27 through December 7, 1995. Koesten had "modeled" before. "Modeling" means that an experienced teacher teaches another teacher's class in order to demonstrate to that teacher classroom management skills, behavior skills, and academic skills. Principal Smith instructed Koesten to establish a classroom management system, to establish a behavior management system, and to teach the students. When Koesten took over Respondent's classroom, Respondent was on leave. Koesten assessed Respondent's class when she started her modeling. Respondent's lesson plans were sketchy, and no routine had been established in Respondent's classroom. Koesten conducted a class meeting to develop a schedule for daily activities. She, together with the students, set up a behavior management system, establishing the rules of conduct, consequences, and rewards. She experienced no problems with Respondent's students once they had established rules for that classroom. "Running reading records" was a school-wide system being implemented that year to help measure a student's progress in reading. Respondent had no running reading records when Koesten began modeling in Respondent's class. Koesten set up running reading records for Respondent's class, established a reading program using those records, and began using spelling words from the reading program. She also set up learning centers within the classroom so students who had finished an activity could begin other work rather than beginning to misbehave. Respondent did not have any learning centers in her classroom. Respondent returned to school on December 6. Koesten met with her in the morning to explain the changes which had been implemented. Respondent then spent the day observing Koesten teaching Respondent's class. At the end of the day, she again met with Koesten to discuss the reading program and learning centers which Koesten had established. On the next day, Respondent took over the class, and Koesten observed her teaching. During the time that Koesten was in charge of Respondent's class, the class ran smoothly with the classroom management system and the behavior management system she had put in place. The students liked the systems because they had participated in developing them. Neither the number of students in the class nor the mix of students presented Koesten with any problem. During the morning of February 13, 1996, Assistant Principal Polakoff received a referral on one of Respondent's students for whom they had just recently developed an individual behavior plan. He told Principal Smith about the referral, and Smith went into Respondent's classroom. Smith determined that Respondent had ignored the individual behavior plan which they had developed for that student. Principal Smith summoned Respondent to his office that afternoon to meet with him and Assistant Principal Polakoff so he could give her feedback on what he had observed regarding the deficiencies in her performance that still existed. When she arrived, Smith asked her to describe her behavior management plan, and she did. Smith then advised her that she was not following that plan when he was in her classroom. She told him she was not able to follow her behavior management plan because the children were misbehaving. Smith also told her she had not followed the individual behavior plan for the student whom she had referred that morning. Respondent became very loud, angry, and agitated while Smith was trying to discuss her failure to follow the behavior plans. She alternated between being very angry and calming herself. When she calmed herself, she sat down. When she became angry, she got up and leaned on Smith's desk and leaned toward him. Smith kept trying to focus on how Respondent could improve her classroom performance but Respondent would not discuss that subject. She began attacking Smith verbally. She told him he reminded her of her parents. She told him he was a terrible person and a terrible father. She told him she hated him and that everyone hated him. She told him she would not talk to him but would only talk to Assistant Principal Polakoff. Polakoff told Respondent she needed to talk with Smith because Smith was her boss. Smith remained very calm and "matter of fact." He did nothing to cause Respondent to become agitated. He continued to try to focus on what was needed in order for Respondent to correct her deficiencies. At the end of the conference, Respondent told Smith that he was treating her "shitty". Smith calmly responded that at that point her teaching was "shitty" and that it was "a joke". Also at the end of the conference which had lasted for an hour or more, Respondent told Smith that she was "going to get him". Smith asked her what she meant by that, and Respondent told him that he was just going to have to wait to find out, that he would not know when or where she was going to get him, but that she would. The meeting ended when Respondent walked out of Smith's office. Polakoff was so uneasy about Respondent's threats that he followed her when she left the building and locked the building behind her so she could not return. Smith was concerned for his safety, Respondent's safety, and the safety of the other employees due to Respondent's threats and her agitation level. Just a few weeks before, a Broward County employee had killed his co-workers. Smith was concerned regarding Respondent's emotional stability and whether she should be in a classroom. Principal Smith telephoned his supervisor, Area Superintendent Dr. Daly, and told her what had transpired. She gave him an oral reprimand for using the word "shitty" and told him to call Director of Professional Standards Ronald Wright. Wright also orally reprimanded Smith for using that word and told him to send Respondent a memo asking her to clarify what she meant by her statements that she was going "to get" Smith and that he would not know when or where. Wright also explained to Smith the procedures for requesting that an employee undergo a psychiatric and/or psychological evaluation to determine fitness to remain in the classroom. Principal Smith wrote such a memo to Respondent the following day. Two days later, Respondent replied in writing and stayed out of school for the next several days saying she was too depressed to function. Her written explanation is not accurate, does not reflect the tone of her voice or her anger, and is not believable. On February 14, 1996, Principal Smith initiated the procedure for requiring Respondent to undergo psychological and/or psychiatric testing. He also re-assigned her so that she would assist in the school's media center and not return to her classroom until completion of the psychiatric evaluation. While Respondent was assigned to the media center, she was very disruptive. She kept trying to involve students and parents in her anger toward Principal Smith. On Friday, March 1, Respondent initiated a conversation with Josetta Royal Campbell who was in the media center. Although Campbell was a fellow teacher, she had no personal relationship with Respondent. Respondent asked Campbell if she had been evaluated by Principal Smith, and Campbell replied that she had been. Respondent asked if Campbell had heard that Respondent had received a bad evaluation, and Campbell replied that she had not. Respondent followed her to Campbell's classroom. Inside Campbell's classroom, Respondent became very excited and loud and was easily heard by the custodian cleaning the classroom. Respondent told Campbell that she and Smith had a big argument, that Smith was "out to get" her, and that she was going to kill him. Respondent said she thought Polakoff was her friend but he was a "backstabber" and that Koesten was also "out to get" her. She told Campbell that she was "going to get them all", that Smith had ruined her life, and that "everybody involved would pay for it". She also said that she could not return to her classroom until after she had undergone psychological testing but that since she had been under psychological treatment for ten years, she could pass the test with "flying colors". Over the weekend Campbell thought about what Respondent had said. She was concerned about the threats Respondent had made toward Principal Smith and the others. She took Respondent's threats seriously. On Monday she wrote a letter to Principal Smith telling him what had happened. On March 6, Principal Smith re-assigned Respondent to temporary duty with pay in her own home. Respondent selected a psychiatrist from a list given to her by the Director of Petitioner's Instructional Staffing Department. She selected Dr. Fernando Mata and was evaluated by him on March 7, 1996. After seeing Respondent on that date, he recommended that she undergo psychological testing. Respondent was given a list of psychologists to choose from, and she selected Dr. Jack Singer. He evaluated her on March 22, conducting a personal interview and administering the Minnesota Multi-Phasic Personality Inventory II, the Thematic Apperception Test, and the Holtzman Inkblot Technique. Dr. Singer concluded that Respondent is unstable and unpredictable. He opined that Respondent cannot safely handle a classroom full of children at this time. Upon review of Dr. Singer's report, Dr. Mata issued a supplemental report agreeing with Singer's opinions and concluding that Respondent "should not be returned to a classroom setting at this time". A conference was held with Respondent, her union representative, Petitioner's Director of Personnel, Petitioner's Director of Professional Standards, and Petitioner's Director of Instructional Staffing to discuss with Respondent the options available to her under Petitioner's policies and the union contract due to the medical report determining that Respondent was not fit to teach at that time. Respondent was advised that she could elect: (1) family/medical leave of up to 12 weeks; (2) disability leave for up to two years; or (3) a personal leave of absence. The financial impacts of each type of leave were explained to Respondent. Respondent declined all leave options. By letter dated May 15, 1996, Petitioner's Director of Professional Standards wrote to Respondent asking her to confirm that she still declined all leave options. By letter dated May 22, 1996, Petitioner's Director of Professional Standards again wrote to Respondent confirming that they had spoken on May 20 and that Respondent still declined all leave options and that Respondent understood that her refusal to take any type of leave would force Petitioner to terminate her employment. Petitioner does not second-guess medical opinions. When Respondent declined all leave options, Petitioner had no choice but to initiate termination of Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint and dismissing her from her employment with Petitioner. DONE AND ENTERED this day of November, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this day of November, 1997. COPIES FURNISHED: Eugene K. Pettis, Esquire Haliczer, Pettis & White, P.A. 101 Northeast Third Avenue Sixth Floor Fort Lauderdale, Florida 33301 Francisco M. Negron, Jr., Esquire Tom Young, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Dr. Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
The Issue The issue is whether the Education Practices Commission should suspend, revoke, or otherwise discipline Respondent’s certificate to teach school in the State of Florida.
Findings Of Fact Respondent is certified to teach in the area of Mentally Handicapped. Her Florida teaching certificate, number 637203, is valid through June 30, 1999. Respondent received a satisfactory evaluation of her teaching performance in Duval County for four years prior to the 1992-1993 school year. While teaching at C. G. Woodson Elementary School in Duval County, Respondent helped establish a mobility room for students in the Exceptional Student Education (ESE) program. She also played an important role in the creation of a parent center. She initiated the school’s participation in the foster grandparent program. During the 1992-1993 school year, the Duval County School District employed Respondent as a teacher in a self- contained Exceptional Student Education (ESE) classroom at C. G. Woodson Elementary School. Her students included pre- kindergarten, kindergarten, and first grade students who were designated as Trainable Mentally Handicapped (TMH). Respondent’s principal at C. G. Woodson Elementary School was Ms. Gloridan Norris. In 1992, Ms. Norris observed Respondent in classroom situations that caused her great concern. As a result, Ms. Norris and district ESE personnel began providing Respondent with on-going technical assistance. Respondent denied that she had any problems and did not cooperate with the efforts to alleviate Ms. Norris’s concerns. On or about March 11, 1993, Ms. Norris signed an annual evaluation of Respondent’s performance for the 1992-1993 school year. Competent persuasive evidence supports this evaluation which rated Respondent unsatisfactory in five of eight categories: (a) demonstrates ability to plan and deliver instruction; (b) demonstrates knowledge of subject matter; (c) demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (d) shows sensitivity to student needs by maintaining positive school environment; and (e) demonstrates a commitment to professional growth. Respondent’s overall evaluation was unsatisfactory. By letter dated May 10, 1993, the Duval County Superintendent of Schools advised Respondent that she would be discharged if she did not reach a satisfactory level of performance. It also informed her that she had the option of transferring to a new teaching position within the county. Respondent elected to transfer to another school. For the 1993-1994 school year, the Duval County School District assigned Respondent to teach at Mary McCloud Bethune Elementary School. Mr. William West was her principal. Respondent’s class for this school term consisted of fourth and fifth grade Educable Mentally Handicapped (EMH) students. Her class had twelve students, making it the smallest ESE class in the school. On or about August 2, 1993, Mr. West requested technical assistance for Respondent from the school district’s office of ESE Instructional Program Support. He specifically requested recommendations for Respondent in the area of classroom and behavior management. Pursuant to that request, the school district’s ESE staff visited Respondent’s classroom five times between September 8, 1993 and October 4, 1993. Dory Reese, Specialist in Intellectual Disabilities, prepared a report containing recommendations for Respondent’s immediate implementation. These recommendations included, but were not limited to these: (a) methods to gain control of the classroom so that instruction can begin; (b) how to follow through on any directions; (c) how to discipline; (d) how to be positive in giving directions; (e) how to stop a specific behavior; and (f) how to regain control which has been lost. In the fall of 1993, Mr. West requested assistance for Respondent from the school district’s office of Professional Development. As a result of that request, Sheryl Hahn visited in Respondent’s classroom. Ms. Hahn is certified to teach mentally retarded students. She prepared a written success plan which listed specific objectives and strategies for Respondent to improve her classroom teaching performance. Ms. Hahn’s plan included objectives and strategies in the following areas: (a) ability to plan and deliver instruction; (b) demonstrates knowledge of subject matter; (c) ability to use appropriate classroom management techniques; (d) maintaining accurate records; and (e) showing sensitivity to student needs by maintaining a positive school environment. Respondent and Ms. Hahn discussed the plan, including proposed completion dates for certain objectives, in a meeting on October 12, 1993. On October 26, 1993, Mr. West prepared Respondent’s mid-year evaluation for the 1993-1994 school year. He found that her performance was unsatisfactory in five of eight categories: demonstrates ability to plan and deliver instruction; demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (C) shows sensitivity to student needs by maintaining positive school environment; (d) demonstrates abilities to evaluate instructional needs of students; and (e) shows evidence of professional characteristics. Competent persuasive evidence supports these ratings. On October 27, 1993, Respondent was absent from work. The assistant principal, Ms. Rosa Thomas, had to stay with Respondent’s class until a substitute arrived. Respondent had not prepared lesson plans for her class. Another teacher had to share her class work with Respondent’s students. On October 28, 1993, two of Respondent’s pupils left the classroom without permission. Respondent did not know where they were until they were located in the assistant principal’s office. On November 2, 1993, a student left Respondent’s class and went to the school office without permission. Mr. West sent Respondent a memorandum, reminding her that it was dangerous for the children to leave the classroom without adult supervision. He was concerned for the safety of the children. On November 5, 1993, a parent wrote a memorandum complaining that Respondent’s class was out of control. The parent requested that her child be transferred to another class. On November 8, 1993, Mr. West requested a psychiatric evaluation for Respondent. Mr. West based his request on concerns for the safety of Respondent’s students, concerns for Respondent’s health, and concerns about the school’s program. Respondent was unable to maintain control of her classroom. She appeared to be depressed and lethargic. During the week of November 12, 1993, one of Respondent’s pupils refused to get on the bus. The child walked home across a busy highway without supervision. Meanwhile, parents continued to call or visit Mr. West on a daily basis requesting that their child be removed from Respondent’s classroom. On or about November 19, 1993, Mr. West observed Respondent’s classroom performance. He saw students leaving the room without permission, standing on top of desks, taunting the teacher, and fighting. At the end of the day when Mr. West mentioned her pending psychiatric evaluation, Respondent became loud and emotional and stormed from the room. Mr. West wrote a letter to the Assistant Superintendent of Schools, expressing fear for the safety of the children. He requested that Respondent be removed from the classroom immediately. Late in November or early in December of 1993, Mr. West removed Respondent from her regular teaching position. He assigned her a new duty, one-on-one tutoring of ESE students. On or about December 15, 1993, Mr. West wrote another letter to the Assistant Superintendent of Schools. This letter expressed Mr. West’s fear regarding the safety of adults working with Respondent. During a meeting, Respondent became angry with support staff. She glared at the other adults, mumbled under her breath, and scribbled so hard on a paper that she tore it. Mr. West requested that Respondent be removed from the school setting. In January of 1994, Respondent returned to her regular classroom for the first time in several weeks. Mr. West observed her while she was teaching a lesson. He saw a student standing on top of a table and other students wrestling. The students appeared to ignore Respondent’s attempts to restore order. At times, Respondent appeared to ignore the chaos around her. After this observation, Mr. West told Respondent to return to her assigned duty of tutoring ESE students. Mr. West again requested that the school district remove Respondent from the school and place her in a non-teaching position. A memorandum dated January 27, 1994, advised Respondent that she would receive an unsatisfactory evaluation for the 1993-1994 school year. On March 10, 1994, Mr. West signed Respondent’s annual evaluation for the 1993-1994 school year. She received unsatisfactory ratings in six of eight categories: demonstrates ability to plan and deliver instruction; demonstrates knowledge of subject matter; (c)demonstrates ability to utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; (d) shows sensitivity to student needs by maintaining positive school environment; (e) demonstrates abilities to evaluate instructional needs of students; and (f) shows evidence of professional characteristics. Competent persuasive evidence supports these ratings. On or about April 25, 1994, the Duval County School Board notified Respondent that it intended to terminate her employment. On or about July 11, 1994, Respondent and the Duval County School Board entered into an agreement in which Respondent agreed to resign her teaching position. Clear and convincing evidence indicates that Respondent is not competent to teach or to perform the duties of an employee in a public school system. She is not competent to teach in or operate a private school. Most importantly, Respondent is incapable of providing a safe environment for students in her classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission revoke Petitioner’s teaching certificate for one year from the date of the Final Order. DONE AND ENTERED this 2nd day of July, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1997. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Patricia Simmons 968 Southeast Browning Avenue Port St. Lucie, Florida 34983 Karen Barr Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 325 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Until March 23, 1994, the Respondent, James Ray, was a drama teacher on annual contract at the Pinellas County Center for the Arts (PCCA) program at Gibbs High School in St. Petersburg, Florida. He had been on successive annual contracts since 1990. PCCA is a special program for the arts. It is located at Gibbs High School and operates under the purview of the Gibbs High Principal and her administration. But it operates separately under the direction of its own Coordinator, who reports to the Principal, and has its own Guidance Counselor, who works primarily with the Coordinator, while also part of the school's guidance office. The education and work experience of those hired as PCCA teachers tend to be primarily in the performing arts, as opposed to being in formal classroom teaching. PCCA's class schedule differs from that of the regular Gibbs High students. While regular students are dismissed from school at approximately 2 p.m., PCCA students are in class until approximately 3:30 p.m. The Incident on February 10, 1994 During a class the Respondent was teaching at approximately 2:00 p.m. on Thursday, February 10, 1994, a student of the Respondent, named Marshal, came to the door of the Respondent's classroom and got the Respondent's attention. The Respondent went to the door, and the student asked the Respondent to step out in the hall. When the Respondent did, the student and another student of the Respondent, named Sean, pointed to a third student, who had fallen out of a chair near the door in the hallway and was lying on the floor. The two apparently sober students told the Respondent, and Respondent could see for himself, that the student lying on the floor was inebriated to the point of being incapacitated. Marshal and Sean told the Respondent that the inebriated student had been drinking. The Respondent presumed that they were referring to alcohol consumption. The Respondent told Marshal and Sean that he was going to contact a school administrator, but they pleaded with him instead to let them take the inebriated student home. They assured the Respondent that they could manage it, and the Respondent agreed to let them do so. Since the regular Gibbs High students were being dismissed from school, the Respondent advised them to go out the back door of the school so as to encounter the fewest people possible. The Respondent did not know the name of the inebriated student. He vaguely recognized the student but did not know from where. The Respondent did not think the inebriated student was in any of the Respondent's classes. The Respondent never inquired as to the identity of the student. After dealing with the students who had come to the door, the Respondent returned to his classroom to advise his class that he had to leave the classroom and to have one of his students lead dance exercises in his absence. He then went to the office a guidance counselor, Cody Clark, to report the incident. However, since he did not know the inebriated student's name, he was unable to identify him for Clark. The three students already had left, and the Respondent did not know where they were. He and Clark concluded that there was nothing more that could be done at that time. After speaking with Clark, the Respondent returned to his classroom. By the end of class, Marshal returned to the Respondent's class and told the Respondent that Sean had taken the inebriated student home on a regular school bus. This time, he indentified the inebriated student by name. Marshal also informed the Respondent that he had videotaped David, the inebriated student, while he was drunk in order to communicate an anti-drinking message to the other students. (The theme of the message was supposed to be, roughly, "make sure you never get this drunk.") The Respondent did not ask to see the video and did not ask whether David agreed its being recorded and shown. The Incident on February 11, 1994 The next morning, February 11, 1994, the Respondent had only four students in his first period class. (Some of his students apparently observed what some called "national skip day.") Someone came by his classroom to tell him that the videotape of David drunk the day before was going to be shown in the first period classroom of another teacher, Keven Renken. At the time, the Respondent thought that the video had been recorded after the three students had left the Respondent's classroom door on the previous afternoon. He again did not ask to preview the video. Although the Respondent did not ask, he had the impression that David was aware of and agreed to the showing of the videotape. The Respondent also was assuming that Renken had approved of the showing. He did not verify either assumption. Meanwhile, Marshal had only told Renken that he had "a film of someone being drunk." He also told Renken that the purpose of the videotape was to communicate an anti-drinking message. It was not clear from the evidence that Renken understood the video to be a recording of a student actually being intoxicated, as opposed to acting. Marshal managed to give Renken the impression that the Respondent had approved the showing of the videotape, and Renken did not preview the tape. When the Respondent and his four students arrived at Renken's class, Renken was attending to matters at his desk, and the video had just begun. The Respondent told Renken that he understood that a videotape was being shown in Renken's classroom. This question confirmed to Renken that the Respondent already knew something about the videotape and, perhaps, had previewed it and had approved it. The teachers did not discuss with each other whether the videotape had been previewed or approved. When Marshal saw that the Respondent and his class were arriving, he rewound and restarted the tape. The Respondent stood and watched the videotape with the students while Renken continued to attend to the matters at his desk. Soon after the Respondent arrived, Renken got up from his desk and asked the Respondent to be in charge of both classes while he left the classroom to copy some paperwork. The Respondent naturally agreed, and Renken left the classroom for approximately fifteen minutes. When Renken returned to the class the videotape was almost over. (It only lasted approximately 25 minutes.) It is not clear at what point in the showing of the videotape Renken left the room, or what point he later returned. He did not see very much of it. The Respondent, on the other hand, watched the entire videotape with the students. The videotape, which actually had been made during the morning on the previous day, was disgusting. It began by showing David unconscious on the floor of a room in Marshal's house next to what appeared to be, and what Marshal described on the videotape as being, green vomit. Right at the outset, Marshal mocked David for having gotten so drunk and verbally abused him by calling him names that were vulgar, humiliating and denigrating. From the beginning, the Respondent (and, if he was watching, Renken) should have realized: (1) that the videotape was inappropriate for viewing by the class; (2) that he should have suspected that David had not agreed to its viewing by the class; and (3) that he should have suspected that Renken did not knowingly approve showing the videotape to the class. He should have stopped the tape at least to question David and Renken. The longer the tape ran, the more obvious and clear these judgments should have become to the Respondent. Subsequent footage showed David, while still lying unconscious on his stomach, being dragged by his feet, with his face scraping along the floor, out of the house and onto a concrete porch, leaving a trail of green vomit. On the porch, the other teenagers present (all male) continued various forms of physical and verbal abuse (which continued throughout the videotape.) When David regained semi-consciousness and began to move, they allowed him to fall off the porch on his face. (The porch was approximately two feet above ground level.) As he was leaning against the porch while trying to stand up, still only semi-conscious and totally incapable of protecting himself, they took turns pouring hot and cold water, flour, and urine on him. In a later segment, David is shown standing outside the house and is heard trying to protest and plead with the teenagers to stop hosing him down with a garden hose. He is seen attempting to stagger away and returning to the concrete porch, and it is obvious that he easily could have fallen and seriously injured himself. He stops on the porch to lean against the house, and the physical and verbal abuse continues. In a third segment, David is seen lying in a bathtub, again unconscious. There, the physical abuse continues. The other teenagers pour shampoo, gel, and powder on him. Later, they put nail polish and lipstick on his face, and one of them grabs his hair and bangs the back of his head against the bathtub. Finally, they take turns standing spread-eagle on the edge of the tub and attempting to urinate on David. At least some, but maybe not all, of them actually urinate on him. The Respondent exhibited appallingly poor judgment in passively watching the videotape to its conclusion. It was clearly probable, if not absolutely obvious, that showing the videotape to the class was humiliating and denigrating, not only to David but to the others as well. (Although Marshal and Sean obviously did not realize it, the videotape raised serious questions about their character.) Yet, the Respondent concluded that he did not have "the right" to stop the videotape because it supposedly was the result of Marshal's and Sean's attempt at artistically and creatively expressing an "anti-drinking" message. It is difficult to detect the supposed artistic or creative content in the videotape. Even if there were any, the Respondent clearly should have recognized his "right" as a teacher to stop the humiliating and degrading videotape. He did not even think to stop it in order to ascertain whether Renken and David indeed had approved of showing it. (In fact, neither had.) After the videotape finished, the Respondent left with his class. Neither he nor Renken confiscated the videotape to prevent it from being shown again. As a result, between class periods, Marshal began to show it again. When guidance counselor Clark looked in to check the classroom, where he was planning to lead a tour during the next period, he briefly saw what was going on and told Marshal to stop the tape and bring it to him later. (Clark did not confiscate the tape either. It was not clear from the evidence what parts of the videotape Clark was able to see.) When the Respondent returned to the classroom, where his next class was being held, Marshal was in the process of showing it again. This time, the Respondent told him to stop the tape but still did not confiscate it. Expectations of Pinellas County Teachers At the beginning of each school year, all Pinellas County teachers receive a copies of the Pinellas County Teacher Handbook and Code of Student Conduct. They are told to read and be familiar with them. According to the Pinellas County Teacher Handbook, while the use of guidance counselors for help with minor discipline problems related to instruction is permissible, for other discipline problems teachers are to contact the appropriate assistant principal. While the Teacher Handbook encourages teachers to "handle as many discipline problems as possible without jeopardizing the learning environment," it also provides that major offense should be referred directly to the assistant principal's office. The Teacher Handbook includes, among disciplinary offenses classified as major, being in possession or under the influence of "an unknown substance." The Teacher Handbook also includes the following provisions from an outdated version of the Principles of Professional Conduct for the Education Profession: Obligation to the student requires that the educator: Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety. The Teacher Handbook also requires that teachers be familiar with the "Code of Student Conduct." Among other things, the "Code of Student Conduct" prohibits the use or possession of illegal drugs, materials, substances, or alcoholic beverages on school property or prior to arriving at school and provides that a student violating the prohibition will be suspended and recommended for expulsion. Impact on Teacher Effectiveness David did not agree to showing the videotape. On the morning of Friday, February 11, 1994, Marshal and Sean told him that they had videotaped David while he was drunk the day before and that Marshal had the videotape. They said they were going to show the video in class that day. David did not think they were telling him the truth and did not think there actually was such a videotape. In any event, he was preoccupied as a result of also being told by Marshal and Sean that they had brought him to school the day before. He was concerned that he may have been "referred" to the administration for discipline for being intoxicated on campus. David went to ask guidance counselor Clark and was told that Clark had not "referred" him but that the Respondent might have. When he went to see the Respondent between the first and second period of class, the Respondent revealed to David that there was a videotape and that it already had been shown during first period in Mr. Renken's class. David then went to Renken's first period classroom, where Marshal and Sean were showing the videotape again. David watched for just a short time, but long enough to be shocked and disgusted, as well as humiliated. He left the classroom and went to report to Clark what Marshal and Sean were doing. David has been seriously adversely affected by the videotape and its having been shown at school. He already did not have a good self-concept. As a result of the videotape and its being shown at school, and the aftermath, including this proceeding, he now is in counseling. He thinks former friends and aquaitances have been avoiding him. He verbalizes strong anger at, disillusion with, and distrust of Marshal and Sean. He thought they were his friends but no longer does after what they did. He does not verbalize similar feelings about the Respondent. To the contrary, he appreciates the Respondent's willingness to allow Marshal and Sean take him home from school on Thursday, February 10, and does not blame him very much for the videotape being shown the next day. On the other hand, he blames himself for causing the Respondent's dismissal and is experiencing difficulty dealing with the resulting guilt he feels. On the other hand, David's mother faults the Respondent on several counts. First, she believes he should have taken steps to ascertain what David's problem was on the afternoon of Thursday, February 10, instead of taking the word of Marshal and Sean that he was drunk, presumably on alcohol, but that he was "okay." Second, she thinks she should have been notified so that she could have made arrangements to get David home and take care of him. Third, she thinks the Respondent exposed not only David but, as far as he knew, also other students to safety risks by allowing Marshal and Sean to take David home on the bus. Finally, she faults him for allowing the videotape to be shown in the classroom on Friday, February 11. She thinks the Respondent should be dismissed. She would no longer entrust the Respondent with David's safety and welfare, and she does not think the Respondent should be entrusted with the safety and welfare of any other students. She has given the School Board notice that she and her husband intend to claim damages for personal injuries to David as a result of the incidents on February 10 and 11. Several other students also were appalled at the videotape that was shown on Friday, February 11. They also found it to be disgusting, degrading, and humiliating. They empathized with David and were upset at Marshal and Sean and the other teenagers involved in making the videotape. They also were surprised and perplexed that the teachers were allowing it to be shown. They kept watching the Respondent as the videotape was being shown to see if he was going to stop it. The evidence is that, as a result of the incidents on February 10 and 11, the Respondent's effectiveness as a teacher in the school district has been seriously impaired. At the same time, many other students and parents think the Respondent can continue to teach effectively. Without question, except for the incidents on February 10 and 11, the Respondent has been a fine teacher. Some report that he is one of the best teachers in the school. Except for the incidents on February 10 and 11, he has been caring and concerned for the students. The students have responded to those good qualities and have liked and respected the Respondent. The Respondent has been able to engage his students in the learning process and elicit a good educational response from his students. The incidents on February 10 and 11 represent unfortunate blemishes on an otherwise commendable teaching record. It certainly is possible that the Respondent will be able to rehabilitate himself so as to be worthy of consideration for future annual contracts with the School Board. Discipline of Others Involved The Respondent was not the only School Board employee who was disciplined for conduct related to the incidents on February 10 and 11, 1994. Cody Clark was reprimanded for not notifying administration and David's parents at approximately 3:30 p.m., when he first learned from the Respondent that David was the intoxicated student who had been brought to the Respondent's classroom earlier that afternoon, and for not confiscating the videotape he saw Marshal playing the next morning. Keven Renken was suspended without pay for ten days for his role in allowing the videotape to be shown on Friday, February 11, 1994. It is found that the nature and extent of their roles, and questions regarding the extent of their knowledge of the content of the videotape, can justify taking less severe action against them. There was no evidence of any similar incidents involving School Board employees. The Respondent introduced evidence of discipline resulting from other kinds of incidents in an attempt to demonstrate that dismissal is too severe in relation to the Respondent's actions (or inactions). But those other incidents were too dissimilar to compare with the Respondent's action (or inaction) in this case, and the School Superintendent explained valid reasons for viewing the action (or inaction) by the teachers involved in those cases as being less egregious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the Respondent, James Ray, from employment under his annual teaching contract. RECOMMENDED this 13th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1631 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-40. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary, and last sentence is conclusion of law. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Also, most of the news articles reported phases of the dismissal process. Accepted and incorporated. Respondent's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and unnecessary. 5.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not supported by the evidence. As to E-2, accepted but unnecessary. (Also, omits: "i.e., contacting parent, detentions.") As to E-3, rejected as not supported by the evidence. 12.-13. Accepted but unnecessary. However, the statements and clear inferences in the handbooks and rules, including the excerpts from an outdated version of the Principles of Code of Professional Conduct, required the Respondent to act differently than he did. 14.-17. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. As to the second sentence: rejected as contrary to the greater weight of the evidence that "the purpose" was to dissuade other students from abusing alcohol; accepted and incorporated that Marshal and Sean stated that was a purpose of the videotape. Accepted and incorporated. Rejected as not established that they "drug" [sic] David, or that Clark was listed as an administrator. (Clark was listed as a "Counselor.") Rejected as contrary to the greater weight of the evidence that they said David was "drunk" or "messed up." (They said he was "sick." They assured her twice that David was nonetheless "alright." The third time she asked, David managed to lift his head and smile at her. She thought they were acting.) Otherwise, accepted but unnecessary. Accepted and incorporated. First sentence, accepted and incorporated. Second sentence, rejected as contrary to the greater weight of the evidence. Accepted but unnecessary. Accepted and incorporated. 26-27. Accepted but unnecessary. (It was not clear from the evidence that they knew or should have known David's condition.) Accepted and incorporated. (However, it would not have been Clark's job, and apparently was not Clark's nature, to reprimand the Respondent. He certainly communicated to the Respondent that there was not much either of them could do without the identity of the intoxicated student, and the two of them engaged in considerable effort to try to deduce the student's name.) Accepted and incorporated. Rejected as contrary to the greater weight of the evidence that Marshal came back "shortly" after the Respondent left Clark's office. 31.-35. Accepted and incorporated to the extent not subordinate or unnecessary. 36. Rejected as contrary to the greater weight of the evidence. 37.-38. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to the greater weight of the evidence that the period was "short"; it was about 15 minutes. Rejected as contrary to facts found and to the greater weight of the evidence. 41.-42. Accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, rejected as not being clear from the evidence why the Respondent did not let Marshal show the tape during the second class period; however, that is the reason given by the Respondent in his testimony. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Rejected as contrary to facts found and to the greater weight of the evidence that there were no "drastic reactions." The Respondent himself found the tape to be "disgusting," and so did several other students. However, they apparently were following his lead, looking at the Respondent and waiting to see his reaction (reasonably, expecting him the stop the showing.) Also, rejected as contrary to facts found and to the greater weight of the evidence that the Respondent did not shut off the videotape only because "he did not want to override Mr. Renken." He also testified that he did not want to stifle the "creativity" of Marshal and Sean. It is not clear why the Respondent had the poor judgment to let the videotape be shown. Accepted but unnecessary. Accepted and incorporated. Rejected as not established by the evidence. 48.-52. Accepted but subordinate and unnecessary. 53. As to the first sentence, he testified that students needed to be protected, not teachers. Second and third sentences, rejected because he made it clear that each case is decided on its own facts and that the Respondent's evidence did not recite all of the pertinent facts. From the facts contained in the Respondent's evidence, the Superintendent recalled: in one case, a teacher got a three-day suspension for pushing a student, who did not belong in the classroom and refused to leave, out the door, accidentally causing the student to bump his head and cut his arm slightly; in another, a teacher got a five-day suspension for becoming upset at a student who hit him in the face with a thrown wad of paper, chasing the student with a stool, and accidentally injuring the student's hand slightly when he threw the stool on the floor; and, in a third, a teacher was suspended for five days for drinking off campus with adult students and for driving them and a school staff member while "appearing to be under the influence of alcohol." 54.-60. Accepted and incorporated to the extent not subordinate or unnecessary. 61. Accepted and incorporated as to specific references to videotapes and their confiscation. But several more general guidelines applied and were adequate. 62.-64. Accepted but subordinate to facts contrary to those found, and unnecessary. The guidelines were adequate to inform the Respondent as to what he should have done in this case. (Even without knowing the specifics of the guidelines and rules, Nurmela knew from intuition that the Respondent had violated them. Even Pomerantzeff testified that, from her understanding, never having seen it herself, the videotape was beyond the limits of what she would have allowed students to show and see.) Rejected as contrary to the greater weight of the evidence that he testified student and parent reaction was the sole basis for determining teacher effectiveness. (It can be one factor.) Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that they made that generalization. 68-70. Accepted and subordinate to facts found. 71.-72. Accepted but subordinate and unnecessary. Rejected that they were instructed that signing any petition for the Respondent could result in discipline, only signing one that Shorter had not pre-approved, in accordance with school policy. Accepted but subordinate and unnecessary. Rejected as not established by the evidence. 76.-77. Accepted but hearsay that cannot support findings. COPIES FURNISHED: Keith B. Martin, Esquire Assistant School Board Attorney 301 Fourth Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Mishele B. Schutz, Esquire 535 Central Avenue St. Petersburg, Florida 33701 Howard Hinesley Superintendent of Schools School Board of Pinellas County 301 Fourth Street S.W. Largo, Florida 34640-3536 Honorable Doug Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c), or (g), Florida Statutes (2013),2/ and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent holds a master's degree in early childhood education and is a teacher certified by the State of Florida in the area of elementary education. Respondent is also certified to teach language arts and social studies in middle school. At all times material to the allegations in this case, Respondent was employed by the Sarasota County School District (SCSD). During the 2005-2006, 2006-2007, 2009-2010, and 2010- 2011 school years, Respondent taught kindergarten at North Port Toledo Blade Elementary School (Toledo). During the 2007-2008 and 2008-2009 school years, Respondent taught first grade at Toledo. Respondent executed a professional service contract of employment for the SCSD on July 1, 2008, approximately a month before the start of the 2008-2009 school year. TEACHER EVALUATIONS In the SCSD during the applicable time, the instrument used for teacher evaluations was called the Professional Rubrics Investing and Developing Educator Excellence (PRIDE) performance evaluation system which contains a Florida Performance Measurement System (FPMS) Summative Observation Instrument, a Performance Improvement Plan (PIP) Checklist, and a PIP Classroom Instructional Level 1 & 2 form. Utilizing the PRIDE, SCSD teachers were required to demonstrate competency in four Domains. Each domain encompassed a specific aspect of teaching: I- Creating a Culture for Learning; II- Planning for Success; III- Instruction and Assessing Student Achievement; and IV- Communicating Professional Commitment; and each domain had several subparts. During an observation/evaluation, a teacher could receive one of four ratings: accomplished, developing, needs improvement, or unsatisfactory. A teacher who receives two or more "unsatisfactory" ratings in PRIDE domains I, II, or III, could be subject to termination from the SCSD. Following classroom observations, should a school administrator determine there are concerns regarding a teacher's performance, a PIP conference (conference) may be called. Those attending the conference are the teacher, a union representative,6/ the school's administrator(s), and a district representative. During the conference, the school's administrator discusses the classroom observations of what was working or not working in the teacher's classroom. The PIP is fully explained to the teacher. A PIP is for teachers who have been identified by their school administrators as having some performance challenges. Its purpose is to provide confidential support via a coach to those teachers who have been identified as performing below acceptable standards. Other support services that can be provided to a teacher include: an opportunity to observe a highly effective similar classroom of students; additional professional development courses; and regularly scheduled PIP conferences to review what has been observed between each conference. The PIP goal is to assist the teacher to become an effective and efficient teacher in the classroom. A PIP is generally established for two school years; however, it may be shortened if the teacher demonstrates improvement in the areas of concern. Once a PIP is in place, the school principal assumes the responsibility of observing and evaluating the teacher. After the conference, a coach is identified, contacted and asked to serve as the teacher's coach. As the PIP progresses, that coach and the school's principal are to provide feedback to the teacher. However, the parties decide the manner in which the feedback is to be provided. There are no set directions for when the principal must provide feedback, except at the regularly scheduled PIP conferences. In the event the teacher's performance has not improved after having a coach and time, an administrator (or administrators) from another school may be called in to observe and evaluate the teacher. This is to ensure that the teacher is evaluated by a neutral third party who is not part of the school's administration. Prior to the PRIDE system, the SCSD used a different evaluation system: the Teacher Performance Appraisal System (TPAS). TPAS provided for pre- and post-observation conferences with the teachers regarding the observations. This system provided timely feedback to the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(d), Respondent be placed on probation for a period of at least three years with such conditions as the Education Practices Commission may specify. DONE AND ENTERED this 23rd day of May, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 23rd day of May, 2014.
The Issue The issue presented is whether Respondent's termination of employment by the School Board of Miami-Dade County, Florida, was proper.
Findings Of Fact Respondent was employed as a teacher at Charles R. Drew Middle School, pursuant to an annual contract and holds Florida Educators Certificate Number 188727. Respondent holds a bachelor of science degree from Florida Atlantic University. She was employed by Petitioner in 1997 and has worked in the teaching profession for approximately 30 years. Prior to 1997, Respondent was a substitute teacher in Broward County, Florida, and in other states. During the 1999- 2000 school year, Respondent taught eighth grade science. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System ("TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and UTD. The identical TADS evaluations are used for all grade levels, subject areas, and teachers, whether new or veterans. TADS objectively measures 68 minimal behaviors necessary for teaching. At all times material hereto, TADS was used to evaluate Respondent's performance. TADS includes the following factors in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. All teachers are contractually required to be informed of the criteria and procedures. At the beginning of each school year, school principals are required to review the assessment criteria with all faculty. TADS observations and ratings are performed by school principals and assistant principals who are trained and certified. The TADS training encompasses four days and includes the following components: strategies for pre-observation, classroom observation, decision-making with the Classroom Assessment Instrument, post-observation interview, prescription/probation of professionals, recommendations for improvement (prescriptive activities), assisting teachers in the design of instruction and improvement activities, practical activities such as video assessment, and actual classroom teacher assessment under the supervision of a trainer. The trained observer is responsible for recording any deficiencies identified during the observation period and providing a prescription plan for performance improvement. Within five work days, a post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response, either in the space provided in column 3 of the "Prescription for Performance Improvement" or by separate document that becomes part of the teacher's file. The teacher is required to comply with the activities provided in the prescription plan, which are usually obtained from the "Prescription Manual," and to meet the deadlines set forth in the column designated "Timeline" in the prescription performance improvement plan. As a result of the statutory amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedures to comply with the new statutory requirements. Under the amended procedures, a "conference for the record" initiates a 90 calendar-day performance probation period. Each observation is independent, and there must be periodic observations during the performance probation period in which the employee is apprised of his or her progress and is provided assistance through prescription plans. After the performance probation period is concluded, a "confirmatory observation" occurs without a prescription plan. On November 8, 1999, Respondent was formally observed by Assistant Principal Paulette Covin during science class. Respondent received an unsatisfactory rating in Category III, Classroom Management; Category IV; Techniques of Instruction; and Category V, Teacher-Student Relationships. Respondent was rated unsatisfactory in classroom management because she did not effectively use verbal or non- verbal techniques to redirect off-task learners. Several students continuously misbehaved and violated classroom rules. Four students were engaged in drawing during the lesson. One student slept throughout the entire observation which lasted over one hour. Six students talked throughout the observation period. Several students left their seats without permission and walked around the classroom during the observation period. Respondent did not use techniques effectively to maintain the attention of off-task learners. Clear expectations of student behavior and a systematic approach to proper classroom discipline were not evident. Respondent blew a whistle in an attempt to redirect off-task behavior, but there was no connection between the whistle-blowing and the expected behavior. The students did not react at the use of the whistle. Classroom rules were referred to; however, disruptive students were not dealt with quickly and appropriately. Respondent was rated unsatisfactory in techniques of instruction because Respondent failed to provide background information explaining why the topic of waves was being discussed. Respondent asked students if they remembered what they had learned about waves and electromagnetic spectrum. A student responded, "You did not teach us that." Moreover, lesson components were not properly sequenced. Without any segue or introduction from one activity to another, Respondent told the students to engage in jump-in reading and later, buddy reading. Respondent did not provide students with examples of demonstrations for the lesson she was teaching. Respondent did not provide students with feedback. Respondent was rated unsatisfactory in teacher-student relationships because Respondent did not promote a positive interpersonal environment in her classroom. She did not encourage her students who had difficulty responding. She demonstrated a lack of empathy and understanding for students who responded poorly during the observation, and did not solicit involvement from students who appeared reluctant to participate. She failed to take corrective action when one student gave a response and another student yelled out, "Dummy that's not right." During the post-observation conference for the record held on November 15, 1999, Respondent was advised that her performance was unacceptable, and effective immediately, was being placed on a 90 calendar-day performance probation period. She was informed that, at the end of her probation period, it was her responsibility to demonstrate that she had corrected the identified deficiencies. On November 17, 1999, Respondent received a prescription for performance improvement. Assistant Principal Covin made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The plan included observing a lesson taught by a fellow teacher and submitting a summary of the verbal and non- verbal discipline techniques used by that teacher to redirect off-task learners. Respondent was directed to create a classroom management plan for implementing techniques to redirect off-task learners, chart implementation for one week, and then discuss the results with Assistant Principal Covin. In addition, Respondent was directed to review reading strategies learned during in-service training sessions and submit a paper describing ways in which Respondent could provide instruction accommodations for more than one learning style. Additional resources, including administrators and fellow teachers, were also made available to Respondent. Respondent submitted her completed prescription activities before the December 3, 1999, deadline. On December 13, 1999, Respondent was formally observed in her science class by Assistant Principal Andy Granados as a subsequent evaluation to apprise Respondent of her progress. Respondent was found unsatisfactory in Category I, Preparation and Planning; Category III; Classroom Management; and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in preparation and planning because she had failed to develop written lesson plans, as required. Instead, Respondent advised Assistant Principal Granados that "the lesson plans were in her head." Respondent was rated unsatisfactory in classroom management because she was unaware that several students were engaged in off-task behavior. Three students left their seats without permission and went to other students' desks to talk casually. One student sat in his chair but did not attempt to complete any work. Seven students held private conversations and Respondent made no attempt to redirect them. Throughout the observation period, students walked aimlessly, sharpened pencils, visited with other students, and disturbed the class. Respondent failed to address their behavior. Although Respondent blew a whistle, there was no connection between the whistle blowing and any expected behavior. Respondent's use of verbal and non-verbal techniques to redirect the off-task behavior was completely ineffective. Respondent was rated unsatisfactory in techniques of instruction because she failed to provide any background for the lesson at hand. The lesson began without introduction and the activities in the class were unrelated. Respondent distributed two worksheets. The first worksheet involved an exercise comparing energy and the second was an isolated word game. She did not provide the students with any explanation about either sheet. Students repeatedly asked, "Why are we doing this?" Assistant Principal Granados held a post-observation conference with Respondent on January 10, 2000, to discuss his findings. Although the observation took place on Monday, December 13, 1999, Respondent, admittedly, was absent on December 14 and 15, 1999, and again on January 3-7, 2000. Furthermore, the holiday break extended from December 18, 1999, to January 2, 2000. Notwithstanding Respondent's testimony that she was present on two workdays, December 16 an 17, between the date of the observation and the post-observation conference held January 10, 2000, Petitioner complied with the five-work day time requirement for the post-observation conference. During their post-observation conference, Assistant Principal Granados made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The directions included writing and submitting daily lesson plans containing objectives, activities, procedures, assessments, and homework. Respondent was directed to observe a fellow teacher and identify instances where non-verbal techniques were used to maintain the attention of the students. She was also directed to prepare a plan for student behavior with rewards and consequences, to read specific pages for the TADS Prescription Manual, and to complete certain activities in that manual. Additionally, Respondent was directed to create a written outline with an introduction to each lesson indicating the relationship between the written instructional objectives, and the planned activities. The written outline was required to be attached to Respondent's lesson plans. Respondent's prescription plan activities were due on January 28, 2000. Respondent requested and received an extension of time to complete the activities until January 31, 2000, and completed the assigned activities on time. On February 8, 2000, Respondent was formally observed again in her science class by Assistant Principal Edward Bethel. Respondent was rated unsatisfactory in Category III, Classroom Management, and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in classroom management because there was no clear expectations for acceptable behavior. Students were engaged in off-task behavior. Four students left their seats without permission, while six students chewed gum and talked throughout the lesson. Respondent blew a whistle but the students continued to talk. Students who interacted inappropriately or interfered with the work of others were not disciplined appropriately. Two students fought over a stool, while a male student tried to remove a book from a female student. Respondent did not intervene. Respondent was rated unsatisfactory in techniques of instruction because there was no background given for the lesson presented and lesson components were not properly sequenced. Respondent listed six unrelated activities on the board. The students were confused about the unrelated assignments and the relationship between the assignments and what they had learned in the previous lesson. In the middle of the lesson, Respondent interrupted the students and read to them about the life of Frederick Douglas. Respondent failed to explain the connection between the life of Frederick Douglas and the lesson objective of the day which involved an animal's environment influencing survival. During the post-observation conference on February 15, 2000, Assistant Principal Bethel made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The assistance included observing a fellow teacher and identifying five verbal and five nonverbal techniques to maintain specific behaviors of learners. Respondent was instructed to submit to Assistant Principal Bethel techniques that could be used to develop clear expectations to deal with students appropriately. Respondent was instructed to list the name of each student who acted inappropriately, and to submit a written plan to Assistant Principal Bethel as to how Respondent would handle negative behavior in the classroom. In addition, Respondent was directed to read specific pages from the TADS Prescription Manual, and to complete certain activities in that manual. Respondent was directed to create a written outline with an introduction to each lesson indicating the instructional objectives, the planned activities, and a description of how those activities will assist the students in reaching the instructional objective. Respondent submitted her completed activities in a timely manner. On March 9, 2000, two days after Respondent's 90-day performance probation period ended, Principal Ronnie Hunter performed a confirmatory observation to determine if Respondent's deficiencies had been corrected. Principal Hunter formally observed the Respondent in her science class and rated her unsatisfactory in Category II, Knowledge of Subject Matter, Category III, Classroom Management; Category IV; Techniques of Instruction; and Category VI, Assessment Techniques. After the confirmatory observation, Respondent was notified that she had failed to correct her performance deficiencies. Thereafter, on March 9, 2000, Principal Hunter forwarded to the Superintendent of Schools his recommendation that Respondent's employment be terminated. By letter dated March 10, 2000, the Superintendent notified Respondent that he was recommending to the School Board that her employment contract be terminated because she failed to correct performance deficiencies during her 90-calendar-day performance probation period. The assistance provided to Respondent through her prescriptions was substantial and appropriate to remedy her cited deficiencies. Although she claims that in-service training opportunities to help correct the noted performance deficiencies were not provided, she was directed to and observed several fellow colleagues engaged in teaching. Dr. O'Donnell, a 31-year veteran with the school system and an expert in TADS and teacher assessment, specifically testified that in-service training is not limited to formal education or workshops, but includes observation of fellow teachers. Although the School Board provided sufficient and meaningful in-service training opportunities to Respondent, she failed to show improvement. Respondent further claims that the School Board failed to meet TADS requirements after she was placed on a 90 calendar- day performance probation in October 1999, following the initial and rescinded observation conducted by Principal Hunter on October 12, 1999. Respondent claims that after she was initially placed on probation in October, Principal Hunter failed to notify her that she was being removed from probationary status due to a procedural error. Principal Hunter testified he rescinded the October 12, observation and verbally told Respondent that he was removing her from the 90-calendar- day performance probation because he did not get a required signature on the post-observation report. Respondent on the other hand, claims she did not receive notification and, as a result, believed the observation conducted by Paulette Covin on November 8, 1999, and the subsequent observations conducted on December 13, 1999, and February 8, 2000, were observations within the 90 calendar-day probation period. Respondent's claim that she never received notice that she was no longer on probation following the October 1999 observation is disingenuous. Notwithstanding Principal Hunter's credible testimony that he verbally informed her that she was no longer on probation, Respondent was clearly placed on notice that she was on probation beginning November 17, 1999. Specifically, on November 15, 1999, a conference-for-the-record was held with Respondent following her unsatisfactory observation held on November 8, 1999, during which Respondent received a written prescription and was informed in writing that, as a result of that unsatisfactory observation, she was being placed on the 90-calendar-day performance probation period. Moreover, on November 17, Respondent signed the summary of the conference-for-the-record which clearly and unambiguously stated, "You were advised of the availability of personnel to assist you during the 90 calendar-day Performance Probation, which commences upon the date that you receive the written prescription." In addition, the School Board committed no statutory violation of any TADS procedures by rescinding the October 12 unacceptable observation. In fact, under TADS the School Board could not rely on the October 12 unacceptable observation to dismiss Respondent because the post-observation report lacked a required signature. The School Board correctly rescinded the October 12 unacceptable observation. The TADS' requirements and procedures were properly executed regarding the formal observations of Respondent and the evaluations of her teaching performance. Petitioner complied with all of the statutory time frames. Respondent also failed to demonstrate that Principal Hunter created a hostile environment toward Caucasian female teachers that resulted in the termination of Respondent's employment. There was no reliable evidence that Principal Hunter discriminated against Respondent at any time including his formal observations of Respondent pursuant to TADS. While Principal Hunter performed two formal observations noting Respondent's deficiencies including the rescinded observation on October 12, 1999, and the confirmatory on March 9, 2000, three different assistant principals also objectively evaluated and rated her unsatisfactory prior to Principal Hunter's confirmatory observation finding Respondent's performance unacceptable. Moreover, Principal Hunter interviewed and hired Respondent as a teacher in 1997. Finally, although the School Board's contract with UTD provides for a joint labor/management committee called the "TADS Monitoring Committee" to resolve evaluation and procedure disputes, Respondent never objected to the criteria, procedures, or assessments of the committee. In sum, Respondent failed to demonstrate that TADS procedures were not followed, or establish that she was harassed or discriminated against by Principal Hunter. On the other hand, Petitioner presented competent substantial evidence that Respondent consistently performed at an unsatisfactory level and failed to correct her deficiencies during the probationary period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order terminating Respondent's employment and denying Respondent's claim for back pay. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001. COPIES FURNISHED: Valerie Kiffin Lewis, Esquire Valerie Kiffin Lewis, P.A. 4801 South University Drive, Suite 102 The Atrium Centre Fort Lauderdale, Florida 33328 Timothy A. Pease, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent committed the acts alleged and violations charged in the Administrative Complaint; and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. Respondent is a teacher. At the time of the allegations in the Administrative Complaint, Respondent held Florida Educator's Certificate 1266409, covering the area Exceptional Student Education (ESE). Respondent's Background Respondent earned a bachelor's degree in special education from New York University and a master's degree in early childhood special education. From 1998 to 2015 she taught ESE in self-contained classrooms (classrooms dedicated to ESE students) in New York. Respondent moved to Florida and began working for Orange County Public Schools, where she was employed in February 2015 as an ESE teacher at Ocoee Elementary School (Ocoee Elementary). For reasons unrelated to this case, Respondent was moved to the position of behavioral specialist (a non-classroom position), but returned to ESE classroom teaching in the fall of 2017. Crisis Prevention Intervention (CPI) is a "best practice" crisis de- escalation protocol used district-wide in Orange County Public Schools. Respondent is CPI trained and certified. In June 2017, Respondent injured her shoulder and ankle at work while she was attempting to pick a student up from the floor. She returned to work after a few weeks of physical therapy. She continues to have pain in her shoulder and ankle. Respondent also suffers from asthma and recurrent nerve pain. By all accounts, Respondent was a dedicated and effective ESE teacher at Ocoee Elementary. She used her own funds to purchase supplies for her ESE students, including exercise balls for autistic students to prevent them from rocking in standard-issue chairs. Her evaluations from Ocoee Elementary were all "effective" or "highly effective." All of the witnesses who had occasion to observe Respondent in the classroom gave her high marks. There is no evidence that Respondent ever acted in anger or frustration with a student. She is accused of having done so in the incident at issue here. Respondent's Classroom For the fall of 2017, Respondent taught ESE students in a self- contained classroom at Ocoee Elementary. The grade level of her students spanned three grades, from second to fourth grade. The class size was approximately 12 students. The students were autistic and/or intellectually disabled. Paraprofessionals were assigned to assist Respondent in the classroom, including Cory Baker, Chanda Nguyen, and Michelle Hartley. The classroom had a designated "safe space," a small open area approximately three to four feet wide located between a large portable closet on wheels, a file cabinet on one side, and a wall on the other side. The safe space floor was covered with a soft mat and pillows. Posters on the safe space wall showed students how to breathe, relax, and decompress. A bathroom was located inside the classroom. The door opened out to the classroom. The door could be locked from the inside. Respondent and the paraprofessionals assigned to the classroom had access to an Allen key to unlock the bathroom door, but a disc had to be "popped" off of the lock to use it. Ocoee Elementary had a "crisis team" that could be called to assist when a student was in crisis, including removing the student if necessary. The crisis team included Juan Colon, who was the school's behavior specialist, and Isaac Bowen, a behavior trainer. The crisis team typically responded to a call for assistance within one to two minutes. The Incident with Student E.T. E.T. was assigned to Respondent's ESE classroom for the fall of 2017. He was 12 years old at that time. The other students ranged from seven to nine years of age. At approximately 5'6", E.T. was not only the largest student in the class, but he was also larger, and about four inches taller, than Respondent. E.T. was considered to be intellectually disabled. He was learning on a first or second grade level and his IQ was below 70. Some of the other students in the classroom were autistic, but E.T. was not. A Behavior Intervention Plan (BIP) is a written plan that identifies problematic behaviors of a particular ESE student and strategies staff should use to address them. E.T. had a BIP that listed three problematic behaviors: (1) noncompliance (that is, refusing to perform tasks, by saying words like "no," "this is stupid," making faces or squeaking noises, or simply walking away); (2) physical aggression (including aggressive posturing towards his peers and throwing small objects like pencils, erasers, and papers); and (3) elopement (defined as walking away from staff). On the morning of October 12, 2017, E.T. began engaging in disruptive behavior that ultimately required his removal from the classroom. The disruptive behavior began when E.T. crawled under the desk of one or more other students and grabbed crayons and pencils that were not his. Respondent attempted to de-escalate and redirect E.T. with oral instructions, but her attempts failed. Ultimately, Respondent called the crisis team for help with E.T. Mr. Bowen arrived at Respondent's classroom within a short time with two other behavior trainers. The rest of the class was taken to the playground. Respondent and Mr. Bowen sat with E.T. at a table to work on compliance tasks, and E.T.'s behavior and mood improved. Respondent and Mr. Bowen walked with E.T. to the playground to retrieve the rest of the class. Respondent, E.T., and the rest of the class went back to the classroom. Mr. Bowen and the other behavior trainers left to respond to another call. On the way back to Respondent's classroom, E.T. refused to walk in line with the other students. One of the paraprofessionals walked with E.T. and redirected him back to the line. Back in the classroom, E.T.'s disruptive behavior resumed. He grabbed pencils and crayons that were not his and crawled under the desks of other students. He also blew mucus out of his nose, spit saliva onto his hands, and wiped his mucus and saliva all over his body. Respondent attempted to redirect E.T., initially by ignoring his behavior. When that failed, she attempted to redirect him with instructions and incentives. This strategy also failed. Finally, Respondent asked two of the paraprofessionals, Ms. Nguyen and Ms. Hartley, to take the other students to the sensory room, an activity room located outside of Respondent's classroom. The class was removed in the hope that E.T.'s behavior would improve once he was denied an audience of his peers. Respondent asked Ms. Baker to remain in the classroom with her to assist with E.T. When E.T.'s behavior did not improve, Respondent and Ms. Baker called the crisis team again, but this time they were unable to reach Mr. Colon or Mr. Bowen because they were either responding to other calls for help or in a radio "dead zone." Respondent thought E.T. might respond better if he was allowed to talk with his mother, so she called E.T.'s mother and allowed him to talk to her on the class telephone. At that time, E.T. was under a table in the classroom pretending to be a turtle. E.T. feigned illness (fake coughing) and told his mother he wanted to go home. He also asked for potato chips to eat. The call terminated and E.T. refused to come out from under the table. After repeated unsuccessful attempts to coax E.T. out from under the table without laying hands on him, Respondent carefully pulled E.T. from under the table, making sure he did not hit his head. E.T. was not injured in any way in the process. Respondent then took E.T. to the classroom safe space. Once in the safe space, E.T. started to crawl under the portable wheeled closet. Respondent was concerned E.T. would injure himself in the process— legitimately so—and lifted him up and held him against the wall. E.T. made himself go limp to become "dead weight" and slumped down to the floor mat. Respondent lifted him back to his feet again and E.T. slumped back down to the floor. This process was repeated several times until E.T. reached on top of the closet and grabbed a basket of toys, causing the basket contents to fall to the safe space floor. The basket included toy train cars made of die cast metal. E.T. grabbed one of the train cars off the floor and threw it over the head of Ms. Baker, who was standing in the middle of the classroom. He threw another train car at Respondent, striking her in the head. Respondent stepped on one of the train cars and fell hard against the wall, pinning E.T. between her and the wall. E.T. said, "My chest hurts, my heart hurts," and "I think I am going to die." Respondent's shoulder hurt and she was short of breath. Having reached her physical limits, Respondent decided to remove E.T. from the safe space because she was concerned he would be able to reach other items on top of the closet, including a heavy paper slicer with a sharp cutting arm. Respondent's plan was to transport E.T. out of the classroom to the "calm-down" room, an empty classroom used to allow students in crisis to decompress. The calm-down room is located about 20 to 30 yards from Respondent's classroom. Respondent guided E.T. out of the safe space and toward the classroom door, with his arm under her armpit. This would be an approved CPI transport hold but for the fact that CPI transport requires two adults to transport a student in crisis in this manner, with each of the student's arms under the armpits of an adult on each side of the student. Ms. Baker—who was also CPI-trained—did not offer to serve as the second adult or provide any other assistance to Respondent while she was struggling to transport E.T. out of the safe space. E.T.—apparently unfazed by falling with Respondent against the safe space wall moments earlier—started to laugh and grabbed crayons off the desk of another student as he was being guided toward the classroom door. E.T. pulled away from Respondent and started walking quickly ahead of her. Respondent tried to maintain a hold on E.T., but was unable to do so without help from anyone (such as Ms. Baker, who continued as a spectator to Respondent's struggles). E.T. announced he was going to the bathroom and headed for the bathroom door. Respondent rushed to stop him, but tripped and landed hard against the bathroom door with E.T. Respondent was concerned—legitimately so—that E.T. could lock himself in the bathroom and create a mess or injure himself before the key to the bathroom could be accessed. Respondent applied all of her weight to the bathroom door, while E.T. held onto the doorknob, to prevent him from accessing the bathroom. Respondent held E.T. against the bathroom door, using her forearm against his chest. Respondent then struggled to lead E.T. away from the bathroom door and toward the classroom exit door, sliding with him against the wall. Natalie Hatch, a staffing specialist at Ocoee Elementary, and Mr. Colon entered the classroom door when Respondent was struggling to keep E.T. out of the bathroom. Mr. Colon immediately assisted Respondent to escort E.T. to the calm-down room using the dual-hold CPI transport position. On the way to the calm-down room, E.T. was crying and upset and he continued to wipe mucus and saliva on his body. In the calm-down room, E.T. tore paper and threw it on the floor. After about 15 minutes, he calmed down and Mr. Colon talked to him about the importance of following instructions. Ms. Colon asked E.T. to pick the paper off the floor and E.T. complied. Mr. Bowen also arrived and walked with E.T. and Mr. Colon back to Respondent's classroom. There were no further incidents involving E.T. that day. E.T. was not injured, physically or otherwise. The Findings of Fact regarding the incident with E.T. are based almost entirely on Respondent's testimony, which the undersigned found to be highly credible. The findings are also consistent with the credible testimony of Mr. Colon, who found nothing wrong with Respondent's attempt to keep E.T. from going into the bathroom by holding him against the bathroom door, nor did he find anything wrong with anything else he witnessed after entering Respondent's classroom. Ms. Baker stood in the middle of the classroom while Respondent struggled with E.T. Ms. Baker could not see all of the safe room interactions between Respondent and E.T., because her field of view was blocked by the closet and cabinet that formed the boundary of the safe space. Ms. Baker made repeated calls to the crisis team, but otherwise failed to offer any assistance to Respondent. Ms. Baker did not voice any objection to the manner in which Respondent physically interacted with E.T. The following day, Ms. Baker complained to administration that Respondent physically mistreated E.T. This led to an investigation of the incident and ultimately to Respondent's termination. Rejection of Corey Baker's Testimony Petitioner relies chiefly on the testimony of Ms. Baker to prove its case. For the reasons that follow, Ms. Baker's testimony was not credible and has not been accorded any weight. Ms. Baker's account of the incident differed from Respondent's in that she contends Respondent "manhandled" E.T. out of frustration, including: "snatching" him out from under the table when he was pretending to be a turtle; and repeatedly slamming E.T. hard against the wall of the safe room; and later the bathroom door. Essentially, Ms. Baker accuses Respondent of physically mistreating E.T. out of frustration with his conduct that day. Ms. Baker's testimony is rejected where it conflicts with the testimony of Respondent and Mr. Colon for several reasons. First, Ms. Baker 's field of view of the safe space was obstructed. No credit has been given to her testimony about what occurred when E.T. and Respondent were in the safe space together, because she could not see all of what happened there. That she would offer testimony describing events she could not have seen casts doubt on her overall veracity. Ms. Baker's credibility also suffers from her admitted failure to intercede in any way to aid a student she now claims to have been physically mistreated for a prolonged period of time. If, as Ms. Baker contends, Respondent "manhandled" E.T. while the three were alone in the classroom, then Ms. Baker should have attempted to separate the two or at least warn Respondent that she was being too rough; she did neither. Here is Ms. Baker's explanation for why she stood idle when Respondent and E.T. struggled: Q. So why didn't you jump into that space and help her lift him up? Why didn't you do something? A. Because, like I said, I do not feel comfortable with it being a blind corner [referring to the safe space] and already seeing stuff done that shouldn't have been done. If somebody came in, it would have literally looked like we were both just trying to take this kid out. In other words, Ms. Baker claims she did nothing to protect E.T. because she might also get into trouble. This explanation is rejected. It is inconceivable that Ms. Baker would sit back and do nothing if she believed Respondent was mistreating E.T. The rational explanation for why Ms. Baker did nothing to intercede to stop Respondent is that Respondent's actions were appropriate under the circumstances. Finally, Ms. Baker's credibility suffers from her embellishment of the incident, including the trauma she claims to have suffered after-the-fact. Ms. Baker testified that the incident was so traumatic that she had nightmares for a week or two afterwards. She went so far as to blame the stress of witnessing the incident for ending her relationship with her boyfriend. There was no evidence that E.T. was injured in the slightest. Indeed, as Ms. Baker admitted, E.T. laughed and continued to grab crayons that were not his after he left the safe space with Respondent. Ms. Baker grossly distorted the resulting trauma she claims to have suffered. For all of these reasons—and the undersigned's observation of the demeanor of the witnesses who testified live at the final hearing— Ms. Baker's account of the incident with E.T. is found to be grossly exaggerated and unreliable, and is given no weight.2 The OCPS Investigation Petitioner also offered the testimony of Acacia Vierbicky, an investigator for Orange County Public Schools (OCPS). Ms. Vierbicky was charged with investigating the incident involving E.T. after Ms. Baker complained to administration. Ms. Vierbicky testified that during the investigation, Respondent admitted to her that she "snatched" E.T.'s arm from underneath the table when he was pretending to be a turtle, and pinned him against the wall—face first—in the safe space. The Administrative Complaint does not allege facts regarding the manner in which Respondent removed E.T. from under the table as a predicate for any charges. Regardless, Respondent denied that she "snatched" E.T. from under the table and explained why she removed him from underneath the table. Respondent's testimony was credible and is accepted over Ms. Vierbicky's recollection of what she was told during her investigation. 2 Additional evidence was offered to impeach Ms. Baker's credibility. First, to suggest bias, Respondent and Ms. Baker were close friends at one time, but that relationship soured the summer before this incident occurred. Second, another teacher testified that Ms. Baker came forward with false allegations against her in an attempt to get her fired. Finally, another witness testified that Ms. Baker is prone to exaggerate events involving students in general. While all of this testimony may be true, it is unnecessary to rely upon it to reach the conclusion that Ms. Baker's testimony is unreliable. The characterization of whether Respondent "pinned" or "held" E.T. against the wall of the safe space with the weight of her body is not an important distinction here. What is important is that Respondent did so to prevent E.T. from crawling under the wheeled closet or grabbing dangerous items from the top of the closet. Holding E.T. against the wall under these circumstances—whether an approved CPI hold or not—was entirely reasonable to prevent E.T. from hurting himself or others. Ms. Vierbicky's testimony as to her recollection of Respondent's admissions is rejected where it differs from Respondent's live testimony.3 Crisis Prevention Intervention CPI is not the law; it has not been adopted by statute or rule. Petitioner offered the testimony of Kimberly Ann Smith, an expert in CPI and behavior analysis. Ms. Smith testified credibly that pinning or holding a student against a wall or holding a student with his arm behind his back is not an approved CPI hold. But, as Ms. Smith repeatedly acknowledged, CPI is a "best practice" protocol. As such, restraining a student with a non-CPI approved hold can be reasonable under certain circumstances even if it is not the "best practice." Ms. Smith testified that it is acceptable to physically restrain a student when the student may hurt himself or others. Ms. Smith also agreed that E.T. could have injured himself crawling under the wheeled closet and that throwing the metal trains presented a legitimate safety concern. The CPI training materials offer examples of approved holds that one teacher can apply to restrain a student, but these holds are not appropriate for a student 3 Ms. Vierbicky's investigative summary of the incident involving E.T. was admitted as an exhibit in this proceeding, as were the witness statements she collected during her investigation. Although admitted, these exhibits have not been relied upon here because they are largely hearsay. See § 120.57(1)(c), Fla. Stat. It is also noteworthy that there are obvious material omissions from Ms. Vierbicky's investigative summary, including the failure to mention that E.T. grabbed and threw metal trains while in the safe space and the failure to mention the fact that E.T. was not injured. Thus, even if not hearsay, or predicated on hearsay, the investigative summary represents an incomplete assessment of the incident with E.T., and is unreliable for this reason alone. who is taller than the teacher. In fact, these holds should only be used on a student who is at least a head shorter than the teacher. E.T. is significantly taller than Respondent. Petitioner offered no evidence of a CPI-approved hold that would have been appropriate for Respondent to use under the circumstances she confronted with E.T. Petitioner also offered testimony from Ms. Hatch to show that Respondent did not use a CPI-approved restraint when E.T. was attempting to enter the bathroom. Ms. Hatch testified that when she entered the classroom, she saw Respondent holding E.T. with his face against the wall with his hand behind his back. This differs from Mr. Colon's testimony, which was that Respondent was holding E.T. with his back against the bathroom door with her forearm on his chest. Although Mr. Colon's and Ms. Hatch's recollection of the positioning of Respondent and E.T. differ, the distinction is not material. Respondent had a legitimate concern to keep E.T. from entering the bathroom under the circumstances, and her attempts to do so—although not a CPI-approved hold—were reasonable under the circumstances. For all of these reasons, Respondent's admitted failure to use CPI- approved holds to restrain E.T. is not evidence that she failed to make reasonable effort to protect E.T. from any potentially harmful conditions, or that she exposed him to a risk of mental or physical harm. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent, in fact, made reasonable effort to protect E.T. from conditions harmful to learning and/or to his mental or physical health and/or to his safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of March, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 27th day of March, 2020. COPIES FURNISHED: Tobe M. Lev, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Law Office of Ron Weaver Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The central issue in this case is whether the Respondent should be suspended or dismissed from her employment with the School Board of Dade County, Florida (Board).
Findings Of Fact Based upon the testimony of the witnesses the following findings of fact are made: Respondent was employed as a first grade elementary school teacher at Fulford Elementary School during the 1988-89 school year. In September, 1988, the principal at Fulford Elementary, Mrs. Pope, asked the primary education coordinator for region 2, Mrs. Neely, to perform an observation and assessment of all primary teachers at Fulford. Accordingly, Mrs. Neely observed all classrooms for grades kindergarten through three and made recommendations to the teachers and Mrs. Pope. Mrs. Neely visited respondent's classroom on several occasions and observed the Respondent's treatment of students and her teaching methods. Respondent did not follow the lesson plan for the daily lesson, did not have a schedule to specify times for subjects to be taught, and did not have a based reading program as required by the board. When Mrs Neely attempted to counsel Respondent in order to assist her to correct these deficiencies, Respondent became hostile and argumentative. During one visit Mrs. Neely observed the Respondent chasing students around the classroom. At first Mrs. Neely assumed the conduct to be a game of some type. When the conduct continued for several minutes without interruption or comment from Respondent, Mrs. Neely realized that the class was out of control and that the Respondent was unable to restore order. Consequently, Mrs. Neely took charge and got the children into their seats. When she instructed the class to get quiet, Respondent also took her chair and refused to speak. Ultimately, Mrs. Neely taught the class for the remainder of the lesson. Respondent refused to cooperate with Mrs. Neely and did not correct the deficiencies in teaching and class management which Mrs. Neely observed. During a portion of October and November, 1988, Vincent Golden was assigned to Respondent's classroom to work as a teacher's aide. During the three weeks he was with Respondent's class, Mr. Golden observed Respondent on a daily basis. Twice during this period Respondent grabbed a student named Devon by the throat to reprimand inappropriate conduct. On another occasion Respondent grabbed a female student by the hair in order to chastise the student. In a fourth incident, Mr. Golden heard the Respondent instruct students in the class to chase down another student. This chase resulted after Respondent had thrown off her own shoes, failed at catching the student within the room, and had become frustrated the student bolted from the classroom. Mrs. Pope apprehended the errant student and Respondent's posse in the halls. During the fall of 1988, Mary Williams was employed as a systems aide at Fulford Elementary. On one occasion she observed two students outside of Respondent's classroom who were unable to open the door because Respondent and a student were holding it closed from the inside. One of the students was crying hysterically and was taken to the library to calm down. On a second occasion Respondent refused to allow a new student who was handicapped into her room. Mrs. Williams went to Respondent's classroom almost everyday to ask Respondent for her reading groups. It was Ms. Williams' responsibility to enter the reading group information into the school computer. Respondent refused to provide the reading group rosters. During the fall of 1988, Charles Mixon supervised a maintenance crew at Fulford Elementary. One day while Mr. Mixon was observing a crew mowing the lawn adjacent to Respondent's room, he saw Respondent shove two students out of the classroom. Mixon then overheard Respondent tell the students to fight outside if they wished to continue. The students were then left in the hall unsupervised. On another occasion Mr. Mixon overheard the Respondent tell a teacher to kiss her backside. Mr. Mixon watched Respondent make the comment as she pulled her dress halfway up. Lossie Jordan was an exceptional education teacher at Fulford Elementary during the 1988-89 school year. On one morning Ms. Jordan was in the office copying some materials when Respondent approached her and asked her if she had a squirrel for her. When Mrs. Jordan replied in the negative and asked Respondent why she would ask that, Respondent told her that a woman had come to her house the day before to tell her to ask Mrs. Jordan that question. No further explanation was offered by Respondent. A second incident occurred when Respondent entered Mrs. Jordan's classroom to drop students of for instruction. Mrs. Jordan was in the process of showing another teacher a new blouse she had bought. Upon entering, Respondent told the students that Mrs. Jordan was a thief and that she had stolen the new blouse. A third incident arose when Respondent, Mrs. Jordan and Mrs. Forbes, another teacher, were in the workroom waiting for the copy machine. Respondent was the third to center the room and when Mrs. Forbes told her that they were ahead of her to use the machine, Respondent shoved Mrs. Forbes against Mrs. Jordan who fell against the cabinets. Respondent then left the workroom. On still another occasion, Respondent told Mrs. Jordan to kiss her backside. On October 27, 1988, Mrs. Pope called Respondent into her office for a conference for the record. Mrs. Pope was concerned about the number of incidents which had been reported regarding Respondent's conduct. Mrs. Pope had also observed Respondent's class. During one observation Mrs. Pope watched a group of students who were sitting at a back table in Respondent's class. One student pulled another student's sweater and tied it behind his back so that the student could not use his hands. Mrs. Pope mentioned the problem to Respondent who advised her that since the student had gotten himself into the situation he would have to get himself out of it. On other occasions Mrs. Pope observed Respondent chasing students around the classroom. Respondent failed to properly supervise students in her classroom. As a result, Mrs. Pope was required to return students to Respondent's room after they wandered out into the school halls. Another unsupervised student got her arm caught in a chair and was brought to Mrs. Pope who had to contact Fire Rescue to release the child's arm. On November 2, 1988, Mrs. Pope directed Respondent to come to the office for a conference with a parent regarding allegations the parent's child had made. Respondent refused to meet with the parent. After directives from Mrs. Pope not to lock her classroom door, Respondent locked her door. After directing Respondent not to leave her class unsupervised, Mrs. Pope found Respondent's class unsupervised at least four times. Respondent had physical contact with students to administer discipline after Mrs. Pope directed her to refrain from such conduct. Respondent refused to accept a handicapped student after Mrs. Pope directed her to admit the child into her class. Following a number of the incidents described above, parents asked Mrs. Pope to remove their children from Respondent's class. Respondent's effectiveness was impaired by her behavior and her failure to properly supervise and instruct her class. Mrs. Pope directed Respondent to an employee assistance program. Ultimately, following a conference with Dr. Monroe, Dr. Poiret, a psychiatrist, performed a psychological assessment of Respondent. Following interviews with Respondent on November 22, 1988 and December 1, 1988, Dr. Poiret determined Respondent was not medically fit to carry out her assigned responsibilities. Consequently, Respondent was relieved of her teaching duties and spent the remainder of the school year on leave. During the leave Respondent was to undergo individual psychotherapy on at least a weekly basis and to have a complete physical examination. Later, Dr. Monroe requested that Respondent submit documentation regarding her psychotherapy Respondent did not do so. In August, 1989, Dr. Poiret met with Respondent again to evaluate her ability to return to the classroom. As in the prior instances, Respondent continued to be hostile, noticeably irritable and angry. Since she had made no significant improvement, Dr. Poiret determined Respondent was not medically fit to discharge her teaching duties due to a lack of emotional stability. Respondent repeatedly demonstrated a failure to effectively and efficiently manage the behavior of students assigned to her classroom. She failed to provide a curriculum of education to the students in her class, failed to communicate appropriately with her peer teachers and administrators who attempted to assist her, and failed to carry out her professional1 duties. As a result, Respondent's effectiveness in the school system has been seriously impaired. Respondent failed to take corrective measures to amend her deficiencies, failed to obey reasonable instructions given to her by the principal, and failed to present documentary evidence of her successful completion of therapy required to rehabilitate her for classroom duties.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County, Florida enter a final order dismissing the Respondent from her employment with the public school district. DONE and ENTERED this 21st day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-7035 PETITIONER: Paragraph 1 is accepted. Paragraphs 2 and 3 rejected as irrelevant. Paragraphs 4 and 6 accepted as addressed in paragraph 8, otherwise rejected as irrelevant or recitation of testimony. Paragraph 5 is rejected as irrelevant. Paragraphs 7 and 8 are rejected as irrelevant. Paragraph 9 is accepted. Paragraph 10 is accepted. Paragraph 11 is rejected as hearsay. Paragraph 12 is accepted. As addressed in paragraph 5, paragraphs 13 through 15 are accepted; otherwise rejected as irrelevant or contrary to the weight of the evidence. Except as addressed in paragraph 9, paragraph 16 is rejected as hearsay. Except as addressed in paragraphs 2 through 4, paragraphs 17,18, and 19 are rejected as irrelevant. Paragraph 20 is accepted. The first sentence of paragraph 21 is accepted. The balance of the paragraph is rejected as irrelevant or hearsay. The first six sentences of Paragraph 23 are accepted. The balance is rejected as repetitive, irrelevant or argumentative. Paragraph 24 is rejected as repetitive or irrelevant. Paragraph 25 is rejected as recitation of testimony. Paragraph 26 is accepted to the extent addressed in paragraph 6; otherwise rejected as irrelevant, recitation of testimony or argumentative. Paragraph 27 is accepted. Paragraph 28 is rejected as irrelevant. Paragraphs 29 through 31 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is rejected as contrary to the weight of credible evidence. Todate, Respondent has not submitted written or other evidences from a treating physician which would establish she is medically able to return to the classroom. Paragraph 2 is rejected as contrary to the weight of the credible evidence. COPIES FURNISHED: Irma Annette Butler Lowe 17350 N.W. 17th Avenue Miami, Florida 33056 Frank Harder Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132
The Issue Whether it is appropriate for Petitioner to discipline Respondent's Florida educator's certificate for acts alleged in Petitioner's Administrative Complaint dated November 19, 2009.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is the head of the state agency responsible for certifying and regulating public school teachers in Florida. Respondent holds Florida Professional Educator's Certificate No. 931173, covering the area of Elementary Education, which is valid through June 30, 2013. At the time of the incident alleged in the Administrative Complaint, she was employed at Poinciana Elementary School, in Osceola County, Florida, where she had taught for six years. Respondent has taught for approximately ten years. She started teaching at Poinciana Elementary School in 2002. Dr. Wayne Kennedy (Dr. Kennedy), the principal at Poinciana Elementary School, gave Respondent excellent evaluations. He reported that Respondent did a very good job of teaching students and that the students did well on academic tests. She had good classroom control and management. She was stern and authoritarian with students, she expected them to do what they could, and got good results. He did not recall any complaints during his six years of supervision of Respondent. Dr. Kennedy retired during the 2006-2007 school year. He was replaced by Ms. Sherri Turchi (Ms. Turchi). Ms. Turchi gave Respondent the lowest performance evaluation she had while teaching at Poinciana Elementary School. Ms. Turchi assigned Respondent to teach a fourth-grade class even though Respondent had taught first and second grade and had requested that assignment. Recognizing that Ms. Turchi harbored personal animosity for her, Respondent requested a transfer after the 2007-2008 school year. Her request for transfer was denied. Respondent began teaching the fourth grade in August 2008. In September 2008, Ms. Turchi reassigned Respondent to teaching a Mathematics Block. Unlike a normal elementary school classroom situation, students are rotated through block classes. From September 10, 2008, through November 5, 2008, the date of the alleged incident, Respondent only saw the students involved approximately six times. The national election wherein President Barack Obama was elected occurred on November 4, 2008. As a result of the election, students, not unlike other Americans, were excited. Recognizing this as an educational opportunity, a discussion about the election occurred in Respondent's classroom. Responding to questions and statements from students, Respondent recalls advising them that she voted for John McCain, whom she respected for his character and integrity; that she was neither a Democrat nor Republican; and that voting should not be made based on a candidate's physical appearance. Respondent specifically denied having made statements or used the language referred to in the Administrative Complaint. Respondent's testimony regarding the essential facts and tenor of the classroom discussion about the presidential election is credible. After leaving Respondent's classroom, several students authored statements wherein they reported elements of the discussion that had occurred in Respondent's classroom. It is suggested that the students did this spontaneously or that the exercise was an effort to allow the students to express concern regarding their confusion about the political discussion. The statements were done under the supervision of a second teacher and were the genesis of the allegations in the Administrative Complaint. Petitioner's only witnesses were three students who had participated in the post-election discussion and had authored the referenced statements. Their testimony reflects little specific recollection of the "inappropriate and embarrassing comments" referred to in the Administrative Complaint. Not surprisingly, given their age, lack of recollection, and the passage of time, their testimony and their statements are not accorded significant credibility by the undersigned. On November 6, 2008, Respondent was removed from the classroom and reassigned to the Administration Building. She essentially had no responsibility, but her employment continued. On March 4, 2009, Respondent met with Osceola County School Board officials. She requested transfer to another school where she knew there was an opening for a second-grade teacher. She was advised that transfer was not an option and that she was to return to Poinciana Elementary School. Respondent resigned from her teaching position the following day.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Valerie McCoy Schubert, is not guilty of the violations alleged in the Administrative Complaint and that no disciplinary action be taken. DONE AND ENTERED this 8th day of December, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2010.
