The Issue The issues in this case are whether Respondent satisfactorily corrected specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3)(d), Florida Statutes, and, if not, whether Respondent's employment should be terminated.
Findings Of Fact One of the statutory duties of Petitioner Miami-Dade County School Board ("Board") is to evaluate the performance of every teacher employed in the Miami-Dade County School District ("District"), at least once per year. To accomplish this, the Board uses a personnel assessment system known as "PACES," which is an acronym for Professional Assessment and Comprehensive Evaluation System. PACES is the product of collective bargaining between the Board and the teachers' union, and it has been duly approved by the Florida Department of Education. The Board's evaluation procedure begins with an observation of the subject teacher, conducted by an administrator trained in the use of PACES. On a score sheet called the Observation Form for Annual Evaluation ("OFAE"), the evaluator rates the teacher's performance on 44 independently dispositive "indicators." The only grades assignable to the respective indicators are "acceptable" and "unacceptable"; thus, the evaluator's decision, for each indicator, is binary: yes or no, thumbs up or thumbs down.1 A negative mark on any one of the 44 indicators results in an overall performance evaluation of "unsatisfactory." For the teacher under observation, therefore, each indicator constitutes, in effect, a pass/fail test, with his or her job hanging in the balance. If the teacher passes all 44 of the independently dispositive indicators, then the teacher's performance is rated "satisfactory" and the evaluative process is complete. If, on the other hand, the teacher is given a failing grade on one or more of the 44 indicators and hence adjudged an unsatisfactory performer, then the initial observation is deemed to be "not of record" (i.e. inoperative) and a follow-up, "for the record" evaluation is scheduled to occur, upon notice to the affected teacher, about one month later. In the meantime, the teacher is offered the assistance of a Professional Growth Team ("PGT"), a group of peers who, having received special training in PACES, are in a position to help the affected teacher correct performance deficiencies in advance of the follow-up evaluation. The follow-up evaluation is conducted in the same manner as the initial "not of record" evaluation. If the teacher passes all 44 indicators, then his performance is deemed satisfactory and the evaluative process is complete. If he fails one or more of the indicators, however, then the teacher is placed on probation for a period of 90 calendar days (excluding vacations and holidays). The probation period is preceded by a formal Conference-for-the-Record ("CFR"), at which notice of the specific performance deficiencies is provided to the teacher. As well, the teacher is given a Professional Improvement Plan ("PIP"), wherein particular remedial tasks, intended to help the teacher correct the noted performance deficiencies, are assigned. During the performance probation, the teacher must be formally observed at least twice, by an evaluator using the OFAE. If, on any of these probationary observations, the teacher fails at least one indicator, then another PIP is prepared and offered. Within 14 days after the end of probation, a "confirmatory evaluation" is conducted, using the OFAE. The purpose of the confirmatory evaluation is to determine whether the noted performance deficiencies were corrected. If they were, then the teacher's performance is rated "satisfactory." If not, the principal then makes a recommendation to the superintendent whether to continue or terminate the teacher's employment. As mentioned above, a PACES evaluation takes account of 44 crucial indicators.2 The indicators are organized under "components." The 44 outcome determinative indicators fall within 21 components, which are identified on the OFAE. These components are organized, in turn, under "domains," of which six are identified on the OFAE. Each domain has been assigned a Roman numeral identifier: I through VI. The components are distinguished alphabetically: A, B, C, etc. The indicators are numbered using Arabic numerals. Each specific indicator is named according to the Roman numeral of its domain, the letter of its component, and its own Arabic number. Thus, for example, the first indicator under Component A of Domain I is referred to as "I.A.1." Notwithstanding the PACES taxonomy, the classifications of "domain" and "component" are useful only as a means of organizing the indicators. This is because a teacher does not pass or fail a performance evaluation at the domain level or at the component level; rather, he passes or fails at the indicator level, for, again, each of the 44 indicators is independently dispositive under PACES.3 Thus, each of the determinative 44 indicators is of precisely equal weight. None is more important or less important than another.4 B. At all times material to this case, Respondent Sergio H. Escalona ("Escalona") was a teacher in the District. From 2000 until May 19, 2004, when the Board suspended him pending termination of employment, Escalona was a science teacher at Miami Springs Senior High School ("Miami Springs"), a typical high school in the District. During the 2003-04 school year, an evaluator observed Escalona in his classroom on five separate occasions, each time using the OFAE. The dates of these evaluations were, and the names of the respective evaluators are, as follows: Evaluation Date Evaluator November 5, 2003 Carlos M. del Cuadro, Assistant Principal, Miami Springs December 2, 2003 Mr. del Cuadro January 16, 2004 Douglas P. Rodriguez, Principal, Miami Springs February 17, 2004 Deborah Carter, Assistant Principal, Miami Springs April 5, 2004 Mr. Rodriguez The Board contends that Escalona failed all five evaluations; the first, however, was deemed "not of record" and thus is relevant only insofar as it opened the door to the process that followed. The following table shows, for each evaluation (including the first), the indicators that the respective evaluators thought Escalona had failed: IA1 IA2 IB1 IB3 IE3 IF1 IF2 IIA1 IIA3 IIB2 IIB4 11-05-03 x x x x x x x 12-02-03 x 01-16-04 x x x 02-17-04 x x x x 04-05-04 x x x IID1 IID3 IID4 IIE1 IIE2 IIE5 IIIA1 IIIA3 IIIB1 IIIB3 IIIB4 11-05-03 x x x x x x 12-02-03 x x 01-16-04 x x 02-17-04 x 04-05-04 x x x x x IVA3 IVA 5 IVA6 IVB1 IVB2 IVB 3 IVC2 IVD1 IVD3 IVD6 IVE2 11-05-03 x x x x x x x x x 12-02-03 x x x 01-16-04 x x x x x x 02-17-04 x x x x x 04-05-04 x ? x ? x ? x x IVE4 VA1 VA4 VB1 VB2 VC1 VIA2 VIB1 VIB3 VIC2 VIC4 11-05-03 x x x x x x x x 12-02-03 x x x x 01-16-04 x x x x x x x 02-17-04 04-05-04 x ? ? ? x ? x x Because Mr. del Cuadro identified 10 performance deficiencies on December 2, 2003, Escalona was placed on performance probation, pursuant to the procedure described in detail above. Mr. Rodriguez held a CFR on December 9, 2004, to review with Escalona the identified deficiencies and explain the procedures relating to the 90-day probation. Following the CFR, Escalona was given written notice of unsatisfactory performance, in the form of a Summary of Conference-For-The-Record And Professional Improvement Plan (PIP), dated December 9, 2003 ("Summary"). In the Summary, Mr. Rodriguez charged Escalona with failure to satisfactorily perform the following PACES indicators: II.B.4, II.E.5, III.B.3, IV.A.5, IV.B.1, IV.D.1, V.A.1, V.A.4, V.B.1, and VI.A.2. (These 10 indicators are highlighted vertically in the table above.) At the same time, Escalona was given a PIP, and a PGT was assembled to provide assistance. Following the confirmatory evaluation on April 5, 2004, based on which Mr. Rodriguez identified 24 deficiencies as shown in the table above, Mr. Rodriguez notified the superintendent that Escalona had failed to correct noted performance deficiencies during a 90-day probation and recommended that Escalona's employment be terminated. The superintendent accepted Mr. Rodriguez's recommendation on April 12, 2004, and shortly thereafter notified Escalona of his decision to recommend that the Board terminate Escalona's employment contract. On May 19, 2004, the Board voted to do just that. C. Of the four evaluations "for the record," the two that were conducted during Escalona's probation (on January 16, 2004, and February 17, 2004) are presently relevant mainly to establish that the proper procedure was followed——a matter that is not genuinely disputed. The substance of these probationary evaluations cannot affect the outcome here because even if Escalona's performance had been perfect during probation, Mr. Rodriguez nevertheless found deficiencies during the post- probation, confirmatory evaluation, which is the only one probative of the dispositive question: Had Escalona corrected the noted performance deficiencies as of the two-week period after the close of the 90 calendar days' probation? In view of the ultimate issue, the evaluation of December 2, 2003, is primarily relevant because it established the 10 "noted performance deficiencies" that Escalona needed to correct. For reasons that will be discussed below in the Conclusions of Law, the Board cannot terminate Escalona's employment based on other deficiencies allegedly found during probation or at the confirmatory evaluation; rather, it must focus exclusively on those 10 particular deficiencies which Escalona was given 90 calendar days to correct. Thus, stated more precisely, the ultimate question in this case is whether any of the 10 specific deficiencies identified in the Summary provided to Escalona on December 9, 2003, persisted after the 90-day probation. As it happened, Mr. Rodriguez determined, as a result of the confirmatory evaluation on April 5, 2004, that Escalona had corrected three of the 10 noted performance deficiencies, for Mr. Rodriguez gave Escalona a passing grade on the indicators II.B.4, II.E.5, and III.B.3. The remaining seven deficiencies upon which termination could legally be based are identified in the table above with the "?" symbol. It is to these seven allegedly uncorrected deficiencies that our attention now must turn. The Board contends, based on Mr. Rodriguez's confirmatory evaluation of April 5, 2004, that Escalona was still, as of that date, failing satisfactorily to perform the following PACES indicators: 5: The purpose or importance of learning tasks is clear to learners. 1: Teaching and learning activities are appropriate for the complexity of the learning context. IV.D.1: Learners have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. V.A.1: Learners are actively engaged and/or involved in developing associations. 4: Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. 1: A variety of questions that enable thinking are asked and/or solicited. VI.A.2: Learner engagement and/or involvement during learning tasks is monitored. The only descriptive evidence in the record regarding Escalona's performance on April 5, 2004——and hence the only evidence of historical fact upon which the undersigned can decide whether Escalona failed adequately to perform the seven indicators just mentioned——consists of Mr. Rodriguez's testimony. Mr. Rodriguez, who had observed Escalona in the classroom for 50 minutes that day, recounted at final hearing what he had seen as follows: Again, there were students that were simply not engaged at all in learning. For example, there was a student that put his head down at a particular time. He slept for about fifteen minutes. Mr. Escalona never addressed the student, never redirected the learning, never tried to engage that student. Overall the students continued to pass notes in class. The students simply——there was really no plan at all. That was get up, give a lecture. Kids were not paying attention. No redirection for student learning. Questions again very basic. Most of the questions had no response from the students. And [they] just seemed very disinterested, the students did, and the lesson was just not acceptable. Final Hearing Transcript at 103-04. To repeat for emphasis, any findings of historical fact concerning Escalona's performance during the confirmatory evaluation must be based on the foregoing testimony, for that is all the evidence there is on the subject.5 Mr. Rodriguez did not explain how he had applied the seven indicators quoted above to his classroom observations of Escalona to determine that the teacher's performance was not up to standards. D. The seven indicators at issue in this case, it will be seen upon close examination, are not standards upon which to base a judgment, but rather factual conditions ("indicator- conditions") for which the evaluator is supposed to look. If a particular indicator-condition (e.g. the purpose of learning tasks is clear to learners) is found to exist, then the evaluator should award the teacher a passing grade of "acceptable" for that indicator (in this example, Indicator IV.A.5); if not, the grade should be "unacceptable." The indicator-conditions are plainly not objective historical facts; they are, rather, subjective facts, which come into being only when the evaluator puts historical facts against external standards, using reason and logic to make qualitative judgments about what occurred. Subjective facts of this nature are sometimes called "ultimate" facts, the answers to "mixed questions" of law and fact. To illustrate this point, imagine that the class Mr. Rodriguez observed on April 5, 2004, had been videotaped from several different camera angles. The resulting tapes would constitute an accurate audio-visual record of what transpired in Escalona's class that day. Anyone later viewing the tapes would be able to make detailed and accurate findings of objective historical fact, including words spoken, actions taken, time spent on particular tasks, etc. But, without more than the videotapes themselves could provide, a viewer would be unable fairly to determine whether, for example, the "[t]eaching and learning activities [had been] appropriate for the complexity of the learning context" (Indicator IV.B.1), or whether the questions asked adequately "enable[d] thinking" (Indicator V.B.1).6 This is because to make such determinations fairly, consistently, and in accordance with the rule of law requires the use of standards of decision, yardsticks against which to measure the perceptible reality captured on film. Another term for standards of decision is "neutral principles." A neutral principle prescribes normative conduct in a way that permits fair judgments to be made consistently—— that is, in this context, enables the reaching of similar results with respect to similarly performing teachers most of the time. A neutral principle must not be either political or results oriented. It must be capable of being applied across- the-board, to all teachers in all evaluations. In the unique milieu of PACES, neutral principles could take a variety of forms. One obvious form would be standards of teacher conduct. Such standards might be defined, for example, with reference to the average competent teacher in the District (or school, or state, etc.). In an adjudicative proceeding such as this one, expert testimony might then be necessary to establish what the average competent teacher does, for example, to monitor learner engagement and/or involvement during learning tasks (Indicator VI.A.2) or to create opportunities to learn at more than one cognitive level (Indicator IV.D.1).7 Other standards might be definitional. For example, to determine whether teaching and learning activities are appropriate (Indicator IV.B.1) practically demands a definition of the term "appropriate" for this context. Still other standards might be framed as tests, e.g. a test for determining whether a question enables thinking (Indicator V.B.1). However the neutral principles are framed, at bottom there must be standards that describe what "satisfactory" performance of the indicators looks like, so that different people can agree, most of the time, that the indicator- conditions are present or absent in a given situation——and in other, similar situations. Without neutral principles to discipline the decision-maker, the indicators can be used as cover for almost any conclusion an evaluator (or Administrative Law Judge) might want to make. In this case, the record is devoid of any persuasive evidence of neutral principles for use in determining, as a matter of ultimate fact, whether the conditions described in the seven relevant indicators were extant in Escalona's classroom on April 5, 2004, or not. E. In this de novo proceeding, the undersigned fact- finder is charged with the responsibility of determining independently, as a matter of ultimate fact, whether, as of the two-week period following probation, Escalona had corrected all of the performance deficiencies of which he was notified at the outset of probation. The only evidence of Escalona's post- probation teaching performance consists of Mr. Rogriguez's testimony about his observation of Escalona for 50 minutes on April 5, 2004, which was quoted above. Mr. Rodriguez's testimony gives the undersigned little to work with. His observations can be boiled down to four major points, none of which flatters Escalona: (a) Escalona lectured, and the students, who seemed disinterested, did not pay attention——some even passed notes; (b) Escalona asked "very basic" questions, most of which elicited "no response"; (c) one student slept for 15 minutes, and Escalona left him alone; (d) the lesson was "just not acceptable." On inspection, these points are much less helpful than they might at first blush appear. One of them——point (d)——is merely a conclusion which invades the undersigned's province as the fact-finder; accordingly, it has been given practically no weight. The only facts offered in support of the conclusions, in point (a), that the students "seemed" disinterested and were "not paying attention" to Escalona's lecture is the testimony that some students passed notes, and some (many?) did not answer the teacher's questions. But this is a rather thin foundation upon which to rest a conclusion that the students were bored because Escalona's teaching was poor. And even if they were (or looked) bored, is it not fairly common for teenaged high-school students to be (or appear) bored in school, for reasons unrelated to the teacher's performance? There is no evidence whatsoever that student boredom (or note passing or non- responsiveness) features only in the classrooms of poorly performing teachers. As for the supposedly "basic" nature of Escalona's questions, see point (b), the undersigned cannot give Mr. Rodriguez's testimony much weight, because there is no evidence as to what the questions actually were or why they were so very basic. Finally, regarding point (c), the fact that a student slept during class is, to be sure, somewhat damaging to Escalona, inasmuch as students should not generally be napping in class, but without additional information about the student (who might have been sick, for all the undersigned knows) and the surrounding circumstances the undersigned is not persuaded that the sleeping student is res ipsa loquitur on the quality of of Escalona's teaching performance. There is certainly no evidence that students doze only in the bad teachers' classes. More important, however, than the paucity of evidence establishing the objective historical facts concerning Escalona's performance on April 5, 2004, is the failure of proof regarding neutral principles for use in determining the existence or nonexistence of the relevant indicator-conditions. Even if the undersigned had a clear picture of what actually occurred in Escalona's classroom that day, which he lacks, he has been provided no standards against which to measure Escalona's performance, to determine whether the indicator- conditions were met or not. The absence of evidence of such standards is fatal to the Board's case. To make ultimate factual determinations without proof of neutral principles, the undersigned would need to apply standards of his own devising. Whatever merit such standards might have, they would not be the standards used to judge other teachers, and hence it would be unfair to apply them to Escalona.
Conclusions The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 1012.34(3)(d)2.b.(II), Florida Statutes. When a teacher contests a superintendent's recommendation of dismissal, as here, the ensuing hearing must be conducted "in accordance with chapter 120." See § 1012.34(3)(d)2.b.(II), Fla. Stat. A "chapter 120 proceeding [entails] a hearing de novo intended to 'formulate final agency action, not to review action taken earlier and preliminarily.'" Young v. Department of Community Affairs, 625 So. 2d 831, 833 (Fla. 1993)(quoting McDonald v. Department of Banking & Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977)). Thus, the Board's burden in this case was not merely to persuade the undersigned that the evaluators sincerely believed, after conducting a legally sufficient assessment, that Young's performance was deficient, nor even to persuade the undersigned that the evaluators' judgment was factually and legally tenable. Rather, the Board's burden was to persuade the undersigned himself to find, independently, that Young's performance was deficient. Because this case is a proceeding to terminate a teacher's employment and does not involve the loss of a license or certification, the Board was required to prove the alleged grounds for Escalona's dismissal by a preponderance of the evidence. McNeill v. Pinellas County School Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Bd. of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Bd. of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990). B. Section 1012.34, Florida Statutes, which governs the process for evaluating teachers, provides in full as follows: 1012.34 Assessment procedures and criteria.-- For the purpose of improving the quality of instructional, administrative, and supervisory services in the public schools of the state, the district school superintendent shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative, and supervisory personnel employed by the school district. The Department of Education must approve each district's instructional personnel assessment system. The following conditions must be considered in the design of the district's instructional personnel assessment system: The system must be designed to support district and school level improvement plans. The system must provide appropriate instruments, procedures, and criteria for continuous quality improvement of the professional skills of instructional personnel. The system must include a mechanism to give parents an opportunity to provide input into employee performance assessments when appropriate. In addition to addressing generic teaching competencies, districts must determine those teaching fields for which special procedures and criteria will be developed. Each district school board may establish a peer assistance process. The plan may provide a mechanism for assistance of persons who are placed on performance probation as well as offer assistance to other employees who request it. The district school board shall provide training programs that are based upon guidelines provided by the Department of Education to ensure that all individuals with evaluation responsibilities understand the proper use of the assessment criteria and procedures. The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate. Pursuant to this section, a school district's performance assessment is not limited to basing unsatisfactory performance of instructional personnel and school administrators upon student performance, but may include other criteria approved to assess instructional personnel and school administrators' performance, or any combination of student performance and other approved criteria. The procedures must comply with, but are not limited to, the following requirements: An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. The assessment must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee's performance. Student performance must be measured by state assessments required under s. 1008.22 and by local assessments for subjects and grade levels not measured by the state assessment program. The assessment criteria must include, but are not limited to, indicators that relate to the following: Performance of students. Ability to maintain appropriate discipline. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field. Ability to plan and deliver instruction, including implementation of the rigorous reading requirement pursuant to s. 1003.415, when applicable, and the use of technology in the classroom. Ability to evaluate instructional needs. Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement. Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board. All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place. The individual responsible for supervising the employee must assess the employee's performance. The evaluator must submit a written report of the assessment to the district school superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than 10 days after the assessment takes place. The evaluator must discuss the written report of assessment with the employee. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file. If an employee is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements: 1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time. 2.a. If the employee holds a professional service contract as provided in s. 1012.33, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following the receipt of the notice of unsatisfactory performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period. During the 90 calendar days, the employee who holds a professional service contract must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee who holds a professional service contract may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies. b. Within 14 days after the close of the 90 calendar days, the evaluator must assess whether the performance deficiencies have been corrected and forward a recommendation to the district school superintendent. Within 14 days after receiving the evaluator's recommendation, the district school superintendent must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the district school superintendent will recommend that the district school board continue or terminate his or her employment contract. If the employee wishes to contest the district school superintendent's recommendation, the employee must, within 15 days after receipt of the district school superintendent's recommendation, submit a written request for a hearing. The hearing shall be conducted at the district school board's election in accordance with one of the following procedures: A direct hearing conducted by the district school board within 60 days after receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. A majority vote of the membership of the district school board shall be required to sustain the district school superintendent's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days after receipt of the written appeal in accordance with chapter 120. The recommendation of the administrative law judge shall be made to the district school board. A majority vote of the membership of the district school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. The district school superintendent shall notify the department of any instructional personnel who receive two consecutive unsatisfactory evaluations and who have been given written notice by the district that their employment is being terminated or is not being renewed or that the district school board intends to terminate, or not renew, their employment. The department shall conduct an investigation to determine whether action shall be taken against the certificateholder pursuant to s. 1012.795(1)(b). The district school superintendent shall develop a mechanism for evaluating the effective use of assessment criteria and evaluation procedures by administrators who are assigned responsibility for evaluating the performance of instructional personnel. The use of the assessment and evaluation procedures shall be considered as part of the annual assessment of the administrator's performance. The system must include a mechanism to give parents and teachers an opportunity to provide input into the administrator's performance assessment, when appropriate. Nothing in this section shall be construed to grant a probationary employee a right to continued employment beyond the term of his or her contract. The district school board shall establish a procedure annually reviewing instructional personnel assessment systems to determine compliance with this section. All substantial revisions to an approved system must be reviewed and approved by the district school board before being used to assess instructional personnel. Upon request by a school district, the department shall provide assistance in developing, improving, or reviewing an assessment system. The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54, that establish uniform guidelines for the submission, review, and approval of district procedures for the annual assessment of instructional personnel and that include criteria for evaluating professional performance. (Underlining and italics added). Under Section 1012.34(3), school districts must establish a primarily student performance-based procedure (or system) for assessing the performance of teachers. In other words, the method of accomplishing the assessment must be tailored to meet the goal of forming evaluative judgments about teachers' performance based mainly on the performance of their students. In clear terms, then, the legislature has announced that the primary (though not exclusive)8 indicator of whether a teacher is doing a good job is the performance of his students. If a teacher's students are succeeding, then, whatever he is doing, the teacher is likely (though not necessarily) performing his duties satisfactorily. It is plainly the legislature's belief that if we do not know how the teacher's students are performing, then we cannot make a valid judgment as to whether the teacher is performing his duties satisfactorily.9 The statute further mandates that, in assessing teachers, indicators of student performance——which performance is assessed annually as specified in Section 1008.22——must be the primarily-used data. (In contrast, evaluators are permitted, but not required, to make use of peer reviews in assessing teacher performance.) Section 1008.22, which is referenced specifically in Section 1012.34(3)(a), requires that school districts participate in a statewide assessment program, the centerpiece of which is the Florida Comprehensive Assessment Test ("FCAT"). See § 1008.22(3), Fla. Stat. The FCAT is a standardized test that is administered annually to students in grades three through 10. Id. Section 1008.22 is not concerned only with the FCAT, however. Subsection (7), for example, provides as follows: (7) LOCAL ASSESSMENTS.--Measurement of the learning gains of students in all subjects and grade levels other than subjects and grade levels required for the state student achievement testing program is the responsibility of the school districts. Thus, the school districts are charged with developing their own local assessment tools, to fill in the gaps left open by the statewide FCAT testing program. Section 1008.22(5) provides additionally that "[s]tudent performance data shall be used in . . . evaluation of instructional personnel[.]" Section 1012.34(3)(a) prescribes two and only two permissible measures of student performance for use in evaluating teachers: (a) the statewide FCAT assessments and (b) the gap-filling local assessments, both of which measures are required under Section 1008.22. It is clear that Sections 1012.34(3) and 1008.22 have at least one subject in common, namely, student performance-based assessment of teachers. Being in pari materia in this regard, Sections 1012.34 and 1008.22 must be construed so as to further the common goal. See, e.g., Mehl v. State, 632 So. 2d 593, 595 (Fla. 1993)(separate statutory provisions that are in pari materia should be construed to express a unified legislative purpose); Lincoln v. Florida Parole Com'n, 643 So. 2d 668, 671 (Fla. 1st DCA 1994)(statutes on same subject and having same general purpose should be construed in pari materia). When the requirements of Section 1012.34(3) are read together with Section 1008.22, several conclusions are inescapable. First, FCAT scores must be the primary source of information used in evaluating any teacher who teaches an FCAT- covered subject to students in grades three through 10. Second, school districts must develop, and annually administer, local assessments for subjects and grade levels not measured by the FCAT. Third, student performance data derived from local assessments must be the primary source of information used in evaluating teachers whose subjects are not covered on the FCAT and/or whose students do not take the FCAT. The absence of evidence in the record concerning the performance of Escalona's students either on the FCAT or on local assessments, as appropriate, see endnote 5, supra, deprives the undersigned of information that the legislature has deemed essential to the evaluation of a teacher's performance. Having neither state nor local assessments to review, the undersigned cannot find that Escalona's performance was deficient in the first place, much less whether he corrected the alleged performance deficiencies in accordance with Section 1012.34(3)(d). Without such findings, the Board cannot dismiss Escalona for failure to correct noted performance deficiencies. C. It was stated in the Findings of Fact above that the Board can terminate Escalona's employment only if, based on an assessment of his performance as of the two-week period following the 90 calendar days of probation, the teacher had failed to correct the particular performance deficiencies of which he had been formally notified in writing prior to probation; other alleged deficiencies, whether observed during probation or thereafter, cannot be relied upon in support of a decision to dismiss Escalona. Standing behind this observation is Section 1012.34(3)(d), Florida Statutes. The pertinent statutory language instructs that a teacher whose performance has been deemed unsatisfactory must be provided a written "notice of unsatisfactory performance," which notice shall include a description of "such unsatisfactory performance" plus recommendations for improvement in the "specific areas of unsatisfactory performance." The statute then specifies that the teacher must be allowed 90 calendar days "following the receipt of the notice of unsatisfactory performance" to correct "the noted performance deficiencies." Clearly, the "noted performance deficiencies" are the specific areas of unsatisfactory performance described in the notice of unsatisfactory performance. Finally, the statute mandates that the teacher shall be assessed within two weeks after the end of probation to determine whether "the performance deficiencies" have been corrected. It is clear, again, that "the performance deficiencies" are "the noted performance deficiencies" described in the written notice of unsatisfactory performance. See § 1012.34(3)(d)1. & 2.a., Fla. Stat. (emphasis added). The reason why a decision to terminate a poorly performing teacher must be based solely on the specific performance deficiencies described in the pre-probation notice of unsatisfactory performance is plain: allowing the school district to rely on subsequently observed deficiencies would defeat the teacher's unambiguous statutory right to have 90 post-notice calendar days in which to correct the noted performance deficiencies that triggered probation in the first place. This case exemplifies the problem posed by post-notice deficiencies. The notice of unsatisfactory performance (the Summary) that gave rise to Escalona's probation, which was based on Mr. del Cuadro's evaluation of December 2, 2003, charged the teacher with 10 specific performance deficiencies. By February 17, 2004, when Ms. Carter formally observed Escalona for the last time before the end of probation, Escalona had corrected all but one (Indicator IV.A.5) of the noted performance deficiencies——suggesting that he had made significant improvement. Unfortunately for Escalona, however, Ms. Carter believed that the teacher had exhibited nine deficiencies besides the noted performance deficiencies, with the net result that, near the end of probation, Escalona still had 10 deficiencies. Of these nine post-notice deficiencies, four (Indicators I.F.1, I.F.2, II.A.1, and IV.B.3) were recorded for the first time ever on February 17, 2004. Obviously, Escalona was not given 90 days to correct these four alleged deficiencies. Yet another three of the post-notice deficiencies reported by Ms. Carter (Indicators I.A.1, IV.A.6, and IV.B.2) had not been seen since Mr. Cuadro's initial evaluation of November 5, 2003. This initial evaluation, being "not of record," cannot count as a notice of unsatisfactory performance to Escalona. Hence he was not given 90 days to correct these three alleged deficiencies. For that matter, the remaining two post-notice deficiencies alleged to exist on February 17, 2004—— Indicators II.D.4 and IV.A.3——had not been observed, post- notice, until January 16, 2004, which means that Escalona did not have 90 days to correct them, either. For the above reasons, when assessing whether, in fact, Escalona had corrected the noted performance deficiencies as of the two-week period following probation, the undersigned focused, as he was required to do, exclusively on the 10 deficiencies described in the Summary, seven of which were alleged not to have been timely corrected. Having determined as a matter of fact that the evidence was insufficient to prove these seven alleged deficiencies existed or persisted, it must be concluded that the Board has failed to carry its burden of establishing the alleged factual grounds for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Escalona of all charges brought against him in this proceeding; (b) providing that Escalona be immediately reinstated to the position from which he was suspended; and (c) awarding Escalona back salary, plus benefits, to the extent these accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2004.
The Issue Whether it was appropriate for Petitioner, Pinellas County School Board, to terminate the employment of Respondent, Curtis Brown, under Section 1012.34, Florida Statutes (2007), due to his failure to correct performance deficiencies after having been placed on Professional Services Contract Probation for 90 days, in violation of School Board Policy 8.25(1)(t); his "incompetence," in violation of School Board Policy 8.25(1)(u); his "insubordination," in violation of School Board Policy 8.25(1)(u); and his failure to comply with "School Board Policy, State Law or the Appropriate Contractual Agreement," in violation of School Board Policy 8.25(1)(x) and Section 1012.33, Florida Statutes (2007).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner operates, controls, and supervises the public schools of Pinellas County, Florida. It has entered into individual and collective agreements with the teachers it employs and publishes policies that control the activities of its teaching professionals. Respondent is employed by Petitioner as a math teacher at Johns Hopkins Middle School and has a Professional Services Contract. Petitioner employs a formalized teacher evaluation process that assesses 25 teaching "expectations." These "expectations" are grouped in three related categories: Highest Student Achievement, Safe Learning Environment, and Effective and Efficient Operations. Each "expectation" receives one of four ratings: Exceeds Expectations, Meets Expectations, In Progress, and Not Evident. Assessments are made on specific and detailed indicia during observations, interviews, and review of data regarding student achievement. Depending on the number of indicia observed for each of the "expectations," a teacher receives a proficiency rating of Level 1 through 4, with Level 4 being the highest. Below a Level 1 is considered unsatisfactory. Respondent was rated unsatisfactory for school years 2006-07 and 2007-08. There are approximately 8,000 teachers in Pinellas County. Of the 8,000, 23 were rated unsatisfactory for the 2007-08 school year; only three were rated unsatisfactory for both 2006-07 and 2007-08. A state requirement of teacher appraisal includes student performance and learning gains for each student in a teacher's class. The Florida Comprehensive Achievement Test ("FCAT") is probably the most notorious student achievement data source in Florida. Unfortunately, the FCAT scores become available in July. Most annual teacher assessments are completed in April of each school year. However, there are other student achievement data sources that can be appropriately used in assessing student performance and learning gains. They include teacher-made pre- and post-tests, district developed assessments, student grades, and curriculum developed assessments. A teacher may offer any of these data sources during his or her evaluation. Because Respondent had received an unsatisfactory rating for the 2006-07 school year, administrators at his school and from the district office provided special attention and direction during the first months of the 2007-08 school year designed to help Respondent improve his teaching performance. The efforts of the administration were not successful. Respondent was placed on a 90-day probation period on January 14, 2008. He was advised of his unsatisfactory performance. At the same time, he received a revised "success plan" and a copy of Section 1012.34, Florida Statutes. Respondent received several formal observations and critiques during the probation period. Petitioner provided the requisite assistance, direction, and on-going assessment. During the 90-day probationary period, Respondent did not respond to specific corrective direction given him by administrators regarding a myriad of basic administrative details, teaching techniques, and methodology. Respondent's annual evaluation took place on April 24, 2008, after the conclusion of the 90-day probation. Even though requested, Respondent failed to provide any documentation of positive classroom results. Even though Respondent failed to present any evidence of positive classroom results, the evaluator (the school assistant principal) had monitored potential classroom progress through various data available to him. He failed to note any positive trend. Respondent received 19 "Not Evident" ratings in 25 "Expectations" and an unsatisfactory rating. Respondent's performance problems were increasing in spite of a concerted effort by the administration to correct the trend. In the 2005-06 school year, he received six "Not Evident" ratings; in 2006-07, 14 "Not Evident" ratings; and in 2007-2008, 19 "Not Evident" ratings. Over the several years contemplated by the testimony of school administrators who had supervisory authority over Respondent, he failed to teach the subject matter assigned, failed to complete lesson plans correctly and timely, failed to use a particular math teaching software program (River Deep) as required, failed to take attendance, and did not use the required grading software. In each instance he was encouraged and, then specifically directed, to comply with established policy regarding these areas of teaching responsibility; and yet, he failed to do so. Respondent's teaching record contains memos regarding the following: Two formal conferences regarding use of excessive force (12/6/02 and 10/29/03); A formal conference regarding growing number of parent concerns over penalizing students on academic work for behavioral problems and giving students F's for assignments that they couldn't complete due to lost work books (11/3/2004); A formal conference summary involving several issues including instructional methodology, leaving students unsupervised in class and leaving campus early (1/24/2005); Three reprimands for disparaging remarks made to or about students (1/19/05, 2/16/05, 4/02/07); A 15-day suspension for falling asleep in class and again leaving students unattended in class (7/12/2005); A formal conference summary for again leaving students unattended in the classroom and unsupervised outside of the classroom door (2/9/2007); and A formal conference summaries for missing a meeting and not turning in lesson plans and IPDP's (12/04/07, 1/29/08, 3/03/08).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Curtis Brown's, Professional Services Contract be terminated. DONE AND ENTERED this 23rd day of January, 2009, 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 23rd day of January, 2009. COPIES FURNISHED: Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 33770-2942 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurie A. Dart, Esquire Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 33779-2942 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was the victim of an unlawful employment practice by allegedly being discriminated against as to a demotion and pay decision on the basis of race and sex, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Gwendolyn Salter, is an African- American female who was initially employed by International Paper in June 2000 as an Operator. Shortly thereafter she was promoted to the position of Lumber Grader and on December 15, 2001, was promoted to the hourly position of Lead Grader. The Respondent, International Paper Company, is a forest product company. At its McDavid, Florida facility it operates a sawmill which produces lumber and other building products for sale to forest product dealers, lumber yards, and dealers in the construction industry. The sawmill opened in the year 2000. It is very important to determine the value of all pieces of lumber a sawmill produces. Variance in the grade of a given board can mean the difference in several dollars in value per board. In order to determine and set the value or price of a piece of lumber, the sawmill must employ Lumber Graders. The Graders inspect lumber to determine the type and number of defects and therefore to determine what the grade of a given board is, including the determination of whether a board should be trimmed to eliminate some defects. The Southern Pine Inspection Bureau (SPIB) promulgates standard lumber grading rules, which are accepted and applied by all members of the lumber-producing industry that are members of the Southern Pine Association. The rules govern how each board is graded. Boards are basically graded one, two, three, four or MSR. Number one is the best grade and a board with the most knots or other defects would be graded a four. An MSR board is generally a grade two board that is particularly strong. Such boards are primarily used for structural members. When grading lumber, the graders determine in the grading process whether a board should be trimmed in order to remove defects to enhance its grade and value. If there is a defect at the end of the board, for example, the board can be trimmed to the next shorter standard length, which would actually increase the value of that board. Since a board's value can vary several dollars per piece, depending on its grade, the integrity of the grading system is integral to the successful operation and profitability of the Respondent's sawmill. The McDavid Mill operated with four shifts. There were about four to five graders working on each shift. They worked on only the "dry end" of the mill. That means that they worked grading lumber after it was sawed in the sawmill, had been kiln dried, to remove excess moisture, and dressed in the planer mill. Then it was graded, including any necessary final trimming. The graders, have approximately two seconds to observe a board, flip it to look for defects on all four sides, and grade it. They look for natural defects, including knots, and make a mark or a symbol on a board indicating its grade. Additionally, the McDavid Mill has a machine vision grader (MVG) that automatically grades the wane and the size of each board. Wane is a defect involving a tapering or lessening of a board's proper dimension generally caused by the board being sawn near the outside margin of a log so that the logs curvature and natural taper and bark tend to reduce the size and square dimension along the edge of a board. The Petitioner was promoted to the position of "Lead Grader" on December 15, 2001. It thus became her responsibility to review the performance of each of the graders at the facility. The McDavid Mill through its operations manager, Alan Orcutt, instituted a new Grader Performance System in November 2003. The new system rated graders every eight weeks based on their grade decision accuracy, their trim decision accuracy, and their knowledge of grading rules. A grader's pay could vary every eight-week period depending on his or her performance during the previous eight week period. The Lead Grader, the Petitioner, was charged with implementing this system. It was the responsibility of the Lead Grader to ensure that at least 1200 boards were reviewed for each grader, each eight-week period, either by the Lead Grader, by the MVG operator, or by SPIB reviewers. Essentially, the SPIB reviewers or inspectors would select a "pack" of boards and review them to ensure that the graders had graded those boards properly. The reviewers would record if a board was above grade, below grade, or properly graded. Secondly, the Lead Grader was responsible for reviewing the graders' trim decision accuracy. The Lead Grader was required to review at least 100 "trim boards" for each grader for each period, to determine if the graders made the correct trim decisions. The SPIB inspectors would record the percentage of boards trimmed accurately. For board trimming decisions, the board is not processed, but is placed into a pack where it is viewable in its entirety by the reviewer. The reviewer sees exactly what the grader saw in looking at the board, and thus can determine whether or not the grader made the correct decision about whether to trim the board and, if so, how much, and where. In other words, the viewer can determine whether it was appropriate to make a two-foot cut on one end, whether or not a knot should be cut out of the board or whether it was under-trimmed or over-trimmed. The Lead Grader was also responsible for monitoring the graders' knowledge of lumber grading rules. The Lead Grader was thus required to give two 25-question written examinations (test) every eight-week period to graders concerning the written grading rules. The Lead Grader was required to administer the test twice per eight-week period on a crew-by-crew basis, correct the answers and return a copy to the grader with the correct answers and an overall score. In order to ensure the integrity of the testing process, the tests were only allowed to be given in group settings. Tests were not allowed to be given to individual graders. There had to be more persons present in the testing room than just the Lead Grader and one individual grader being tested. The graders were ranked B, A, or AA, and their pay would be adjusted accordingly. AA was the highest rating and was paid the highest salary rate. The ranking were based on a combination of grading accuracy, trim decision accuracy, and scores on the grading examination. In order to be ranked AA, for example, a grader would be required to have at least two percent of boards above grade, two and a half percent below grade, with 95 percent trim decision accuracy and 90 percent correct answers on the written test of grading rules knowledge. Depending on the scores, he or she could change ranks each eight-week period and thus change the salary level. The McDavid Mill's grader performance system was thus implemented in November 2003. Mr. Orcutt discussed the Lead Grader performance expectations with the Petitioner during a meeting with all graders. Essentially, Mr. Orcutt explained that the Petitioner was responsible for implementing the new performance system, specifically: re-grading 1200 boards per grader per period, reviewing 100 trim boards per grader per period, and providing at least two grading exams to each grader, each period. When the Grader Performance System was implemented in November 2003, the manager, Mr. Orcutt, intended that the first eight-week period would be a "dry run" in which the results of the grading of the various graders would have no effect on pay rates. The second eight-week period which ran from January to February 2004, was supposed to be "for the record" and would affect pay rates. Ultimately, Mr. Orcutt determined that the Petitioner's data on the graders was inaccurate and incomplete, and therefore he decided to extend the dry run until the third eight-week period during which pay rates would be affected by the graders' performance ratings. On February 6, 2004, Mr. Orcutt provided the Petitioner her performance review. In that review, Mr. Orcutt stated that the Petitioner had "not met expectations." He explained that this referred to the Petitioner's failure to keep track of the performance of all the graders, as well as deficiency issues regarding the grade rule test being administered inappropriately. On February 27, 2004, Mr. Orcutt issued a 30-day performance improvement plan to the Petitioner. In it he put her on notice that she must improve her performance in the execution of her role as a Lead Grader. He explained that during the first two months of 2004, the Petitioner had failed to meet the minimum expectations of the Lead Grader performance standards provided to her in November 2003. Specifically, this referred to Mr. Orcutt's finding that the Petitioner had failed to review the requisite number of boards during the first two months of 2004. The Performance Improvement Plan also explained that if the Petitioner failed to meet the expectations that had been explained to her in November 2003, that she would be removed from her position as Lead Grader and demoted to a Shift Grader position. Mr. Orcutt also decided to transfer the responsibility for in-putting the grader data into the computer to the accounting department. Mr. Orcutt explained that he had received complaints from graders to the effect that the Petitioner was failing to accurately keep records of the number of boards being reviewed, as entered into the computer, which could affect the pay rate of the graders. Mr. Orcutt believed that this change would allow the Petitioner to focus on monitoring the graders. Jessie Ford is an African-American male. He was hired by International Paper at the McDavid Mill in March 2004 as a Dry-End Superintendent. He was hired to replace Mr. Orcutt, who had been promoted. Mr. Ford was responsible for safety, production, and quality of the dry-end production portion of the mill, which included supervision of the graders. During his first few months he monitored the Petitioner's performance and determined that the Petitioner appeared to be complying with the Lead Grader performance expectations. He did, however, verbally counsel the Petitioner about giving tests to individual graders, instead of in the required setting of administering tests to the group of graders simultaneously. In August 2004, Mr. Ford asked the Petitioner if she had completed the requisite number of board re-grades in accordance with the lead grader performance expectations. Although the Petitioner indicated to him that she had completed the re-grades, a review of the data by Mr. Ford and Mr. Orcutt indicated that the Petitioner was under the required board count for re-grading as to several of the graders. Mr. Ford and Mr. Orcutt met with the Petitioner to ask her about the missing boards and also about the discrepancy in what she had told Mr. Ford. The Petitioner explained that she believed that she had reviewed 1200 boards. She claimed that she had reached 1200 by combining the boards that were reviewed for trim tests, with boards reviewed with grading. This explanation revealed both that the Petitioner had failed to meet her minimum expectations and also that the Petitioner appeared not to understand the program almost nine months after it had been implemented. Further, there were a couple of graders, for whom the re-grading count remained low, even if one (wrongly) counted their trim test boards in the aggregate total. Mr. Ford and Mr. Orcutt also spoke to the Petitioner about giving tests to graders on an individual basis, as was prohibited by the performance evaluating system that had been implemented in November 2003. That system required that the test be only given to a group of people or more than one person at a time in order to ensure the integrity of the test and of the performance evaluation system. When confronted with the question of whether she had given a test to an individual alone, the Petitioner responded that there was "someone else" in the room during the test. This again demonstrated to Mr. Ford and Mr. Orcutt that the Petitioner did not really understand the requirements of the performance evaluation or testing system. Following that meeting with the Petitioner, Mr. Ford and Mr. Orcutt met with the human resources manager, Karen Rutherford, as well as the mill manager, Alan Smith. They discussed the issues and possible solutions regarding the Petitioner's performance. Mr. Ford explained in his testimony that the group determined that it was his decision whether or not to discipline the Petitioner. Mr. Ford therefore reviewed the November 2003 performance expectations and the February 2004 Performance Improvement Plan directed at the Petitioner. Mr. Ford determined that the Petitioner had been properly advised of her responsibilities as Lead Grader, the consequences of inadequate performance after imposition of the improvement plan, and had failed to meet expectations. On August 27, 2004, he demoted the Petitioner from Lead Grader to a Shift Grader role or position, in accordance with the February Performance Improvement Plan. Mr. Ford explained to the Petitioner that she had failed to obtain the proper amount of boards in her re-counts, and that she had improperly given tests to graders on an individual basis, as prohibited. The Petitioner claims that she was discriminatorily demoted to a grader from the Lead Grader position and was discriminatorily denied a raise. She grounds this position on the contention that similarly-situated employees outside her protected class were treated differently and more favorably in similar situations, and that her temporary supervisor in the fall of 2003, Mr. Garrett, had a discriminatory attitude toward her and against women. This contention is based upon an alleged discriminatory statement he made and upon the fact that he also required her, in addition to her normal Lead Grader duties, to work on the MVG machine when its regular operator had been fired, and after she had trained his replacement. In essence, the Petitioner complains that Jamey Garrett was prejudiced against her and once made a comment that he "really did not care for working with women." Mr. Garrett had temporarily been placed in partial supervision of the Petitioner as Acting Dry-End Superintendent in the late summer and fall of 2003. At about this time, Mr. Orcutt, and/or Mr. Garrett, acting singly or in concert, directed the Petitioner to assume operation of the MVG machine when its normal operator was fired. She also was required to train a replacement operator for the machine. That effort took about three weeks. Thereafter she asked that her temporary assignment to the machine operation be ended. Mr. Garrett instead told her that he needed her to operate it through the rest of 2003 (approximately two to three months). She maintains, in her own testimonial opinion, that Mr. Garrett and/or Mr. Orcutt "loaded her up" with this extra duty in order to intentionally cause her to fail at her duties as Lead Grader. There is no evidence other than the Petitioner's unsupported opinion, that Mr. Garrett or Mr. Orcutt had this intent in requiring her to perform the extra duty, which incidentally began well before the implementation of the November 2003 new performance and evaluation standards for graders, which the Petitioner, as Lead Grader, was required to learn and implement. The only evidence the Petitioner provided concerning Mr. Garrett's discriminatory animus towards women is the alleged statement referenced above. Mr. Garrett denied making that comment. In fact, however, he did admit, regarding concerns he had about working as a supervisor, (which had not been his permanent assignment), that he asked a promotion board to help him work better with women. This was because he feared that his size (he is 6'5") was intimidating to women. This statement does not indicate any discriminatory intent toward women, nor does the alleged statement about not caring about working with women indicate any such intent, especially because of its isolated nature. Moreover, the persuasive evidence shows that Mr. Garrett actually worked well with women and that he promoted several women during his tenure in a supervisory role. The Petitioner herself recalled a conversation with Mr. Garrett in about March 2004 in which he stated that he thought he and the Petitioner were getting along a lot better. Mr. Garrett's only supervisory authority over the Petitioner was as a set-up supervisor near the end of 2003 and the beginning of 2004, during which time he did not have actual disciplinary authority over the Petitioner. That responsibility remained with Mr. Orcutt. He did apparently have the ability to make recommendations concerning employee matters, including discipline, to Mr. Orcutt. In fact, the evidence reveals that the only disciplinary issue concerning the Petitioner in which Mr. Garrett was actually involved occurred on or about March 2004. Mr. Garrett had been instructed by Mr. Orcutt to issue disciplinary sanctions to the Petitioner. Mr. Garrett therefore met with the Petitioner and allowed her to explain her version of the situation. After listening to her side of the story he accepted her explanation as correct and tore up the disciplinary memo and imposed no discipline. Therefore, although she received a less satisfactory performance evaluation in February 2004 and was placed upon a Performance Improvement Plan in late February 2004, no formal discipline was imposed upon the Petitioner until her demotion in August 2004. The Petitioner contends that she was denied a raise because of her sex. The only evidence related to a raise was testimony provided by Mr. Garrett, who indicated that the Petitioner could not receive a raise because she was already receiving the maximum pay for her grade level as a Lead Grader. The raise in question at that time was given to the other graders but not to the Lead Grader, the Petitioner, because she was already making the maximum of her pay range. Indeed, the Petitioner admitted that the raise was given to all graders, including black graders and female graders. The Petitioner acknowledges that she was the only individual denied a raise at the time in question. Mr. Garrett's explanation as to the reason she was not given a raise, when the others of both races and sexes were, is accepted as accurate. Further, the Petitioner admitted that she was also given the same rate of pay as the highest ranking, AA graders once she was demoted out of the lead grader position. The Petitioner's contention based upon her own opinion that she was denied a raise because of her race or sex is not deemed credible and persuasive under these circumstances. On June 8, 2005, the Petitioner filed her charge of discrimination with the Commission. In the charge she claimed that she had been discriminated against between August 2004 and December 2004, based upon her race and sex. She claimed discriminatory demotion as well as being discriminatorily denied a raise. The Commission after its investigation issued a Determination of No Reasonable Cause to believe that an unlawful practice had occurred. That determination was issued on December 13, 2005, and the Petition for Relief was filed January 26, 2006, initiating this proceeding. The Petitioner claimed in her Petition for Relief that in addition to being demoted and denied a raise because of her race and sex that the Respondent maintained a hostile work environment based upon issues of sex and race. The Petitioner also maintained that she was replaced when demoted by a white male, who took over the position of Lead Grader. She contends that the white male, Mr. LePage, was allowed to maintain a count of his own boards or pieces of lumber that he had reviewed while monitoring the graders, while the Petitioner's numbers of reviewed or inspected boards were maintained in the computer record by the company receptionist. She also maintained that Mr. LePage gave a non-proctored skill test to graders, but was not demoted for it, whereas the Petitioner was demoted for allegedly giving a non-proctored skill test to a grader or where no one else was present in the test room. The persuasive evidence shows that the Petitioner was not similarly situated with her replacement, Mr. LePage. Although she contends that Mr. LePage also provided a test to a grader individually instead of giving the test only in a group setting and yet was not demoted, their circumstances are not comparable. Mr. LePage had only held the Lead Grader position for a few months when the allegation against him was raised. When it was raised, his first disciplinary incident in that position, Mr. Ford counseled him and admonished him that he was only to give test in group settings. The Petitioner, however, had been in the Lead Grader position for a number of years and had been warned about the testing issue at least twice previously. Moreover, she had been admonished about her performance in conjunction with her February 2004 performance evaluation and had already been placed on a performance improvement plan at that time in part for that same issue concerning individualized testing. Thus she was not similarly situated as an employee to Mr. LePage who was disciplined less harshly because it was his first such transgression and warning. In a similar context, it is inferred that Mr. LePage was allowed to input his own board counts into the computer system because, unlike the Petitioner, he had not told management that he had performed and reported the proper board counts when that was proved not to be the case.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of November, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Frederick J. Gant, Esquire Albritton & Gant Post Office Box 12322 322 West Cervantes Street Pensacola, Florida 32581 Vincent J. Miraglia, Esquire International Paper Company 6400 Poplar Avenue, Tower II Memphis, Tennessee 38197
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been employed by Petitioner as a high school teacher assigned to Miami Norland Senior High School. Respondent holds a continuing contract. Respondent began teaching for the Dade County Public Schools during the 1968-69 school year. During that school year, the annual evaluation form utilized by Petitioner provided that a score of below 3.5 indicated unsatisfactory work. During that, his first year of teaching, Respondent received a score of 3.2 on his annual evaluation. For the next 15 years thereafter, Respondent was rated as being acceptable on his annual evaluations for each and every year. During the 1984 summer session, an incident occurred between Respondent and one of his students. As a result of Petitioner's investigation into the allegation that Respondent had committed a battery on that student, conferences were held between Respondent and administrative personnel. Respondent requested a leave of absence for the 1984-85 school year due to personal reasons, and his request for leave of absence was granted. Respondent was required, however, to undergo a psychological evaluation prior to returning to his duties as a classroom teacher. During that school year while Respondent was on leave of absence, he was evaluated by Dr. Gail D. Wainger, a psychiatrist to whom he was referred by Petitioner. Respondent thereafter saw Dr. Albert C. Jaslow, a private psychiatrist, on two occasions. Dr. Jaslow submitted two reports which contained, inter alia, a recommendation that Respondent be transferred to a different school. Dr. Wainger reviewed Dr. Jaslow's reports and her own earlier report and, on May 21, 1985, submitted a report to Petitioner stating, inter alia, that there was no barrier to Respondent's being reinstated into active teaching. Based upon that evaluation, Petitioner permitted Respondent to return to the same teaching position previously held by him for the 1985-86 school year. At the conclusion of that school year, Respondent was rated as being acceptable on his annual evaluation. Respondent again received acceptable annual evaluations for the following two years, i.e., the 1986-87 and the 1987- 88 school years. On his annual evaluation for the 1988-89 school year Respondent was rated as being unacceptable in the area of classroom management, one of the six categories of classroom performance. Pursuant to the rules governing the TADS evaluation system, a rating of unacceptable in any of the categories covered by the annual evaluation instrument requires an overall rating of unacceptable. On his annual evaluation for the 1989-90 school year Respondent was rated as being acceptable in all six categories of classroom performance, including the area of classroom management. It was specifically noted on his annual evaluation form that Respondent had performed satisfactorily during both of the official observations made of his classroom performance. However, Respondent was rated as unacceptable in the non-classroom category entitled professional responsibility. That rating of unacceptable in that one category required that Respondent's overall rating be unacceptable. The basis for the unacceptable rating in the area of professional responsibility involved the determination that Respondent had been disrespectful to students on two separate occasions. On April 16, 1990, one of Respondent's students called another of his students who had an unusual skin pigmentation condition "two-toned." Respondent immediately told the offending student, "do not call the girl two-toned." A conference for the record was conducted with Respondent on April 30, 1990, and Respondent was given a supervisory referral to the Employee Assistance Program. During the week of May 7, 1990, one of Respondent's students was being verbally abusive to the other students, and Respondent told him to stop. That student thereupon began being verbally abusive toward Respondent and using profanity. Respondent then said to that student, "you should talk. You look like Mr. Spock from Star Trek." A conference for the record was conducted with Respondent, and he was issued a formal reprimand. The summary of the conference for the record dated June 1, 1990, prepared by the principal of Miami Norland Senior High School states that the student involved has physically-deformed ears. On his annual evaluation for the 1990-91 school year Respondent was rated as being unacceptable in the areas of classroom management, techniques of instruction, and professional responsibility. Accordingly, he received an overall evaluation of unacceptable. During the 1990-91 school year there were no reported incidents of Respondent allegedly making disrespectful remarks to students. That basis for being rated unacceptable in the area of professional responsibility during the prior academic year was cured. The rating of unacceptable in the area of classroom management was based upon a number of observations of Respondent during the school year wherein the observers noted a lack of control in the classroom, Respondent's failure or inability to re-direct students who were off-task, Respondent's failure or inability to enforce classroom rules, and Respondent's failure or inability to deal with students who were tardy in coming to his class. As to his techniques of instruction, observers during that school year noted that Respondent was teaching from sub-standard books (without noting whether that was a matter within Respondent's control), that the students were confused by Respondent's directions on several occasions, that the students did not understand the lessons being taught, and that on several occasions Respondent made errors in math when writing examples on the board. Some of the observers also noted that Respondent spent too much time on some of the lessons that he was teaching. Numerous prescriptions were given to Respondent during that school year to improve his instruction and to manage his classroom, such as reading sections of the TADS manual and observing other teachers. Respondent complied with each and every prescription given to him. As to being unacceptable in the area of professional responsibility, Respondent failed to properly maintain student folders reflecting their work to justify grades being given to the students, and there were errors in Respondent's gradebook. It also became apparent that Respondent was not making parental contact for students that were performing unsatisfactorily. By March of the 1990-91 school year Respondent was directed in writing to make parental contact as required by Dade County Public School policy. By memorandum dated June 3, 1991, Respondent was notified that he was required to produce within 48 hours a complete up-to-date gradebook, a parent contact log substantiating parent contacts for the entire school year, and all student folders substantiating Respondent's gradebook. He was advised that if he did not do so, he would receive an unsatisfactory rating in the area of professional responsibility. The principal and assistant principal understood the directive to mean that Respondent must produce those documents by noon on June 6, and Respondent understood the directive to mean that he was to produce the documents on June 6. At noon, the principal was not available to Respondent. Respondent did produce many of the documents later that day. There was, of course, no parental log for the entire year since one did not exist. At the end of the 1990-91 school year a recommendation for dismissal was made. Based upon that recommendation, the School Board of Dade County, Florida, suspended Respondent from his employment effective at the close of the workday on July 25, 1991, for incompetency and gross insubordination. In 1984 Respondent filed a grievance against Assistant Principal Wessel and Principal Fowler at Miami Norland Senior High School. The subject of the grievance was that Assistant Principal Wessel had in a loud voice and in a demeaning manner criticized Respondent's lesson plans in front of other teachers, staff and students. The grievance was also filed against Principal Fowler to enlist his assistance in making Wessel refrain from repeated conduct of that nature. The Union considered the grievance to be valid and processed it through the grievance procedures. Thereafter, Respondent was advised by Fowler and Wessel that he had made a big mistake and he would be sorry for having filed that grievance. Respondent began to believe that he had lost the support of the administration and that his job was in jeopardy. When Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year he was moved to a classroom directly across from the main office. Respondent considered that action to be demeaning. He still achieved acceptable evaluations for that year and the following year. During the next school year, in the middle of February, the administration moved Respondent to an old metal shop room and gave his classroom to a new teacher. He still achieved an acceptable annual evaluation that year. For the following school year the administrators assigned Respondent to teach five low-level math classes using five different classrooms. For the last three years of his teaching career, the ones during which he received unacceptable ratings in different categories, Respondent was required to teach all low-level math classes. Although administrative personnel testified that some teachers like low-level classes, Respondent repeatedly made it clear that he did not want that assignment. Further, there is a specific contract provision between the Dade County Schools and the teachers' union prohibiting teachers from being locked into low-level classes year after year, as Respondent was. During the last several years while Respondent was achieving unsatisfactory ratings in some categories, while he was being switched from classroom to classroom, and while he was being required to teach only low-level classes year after year, the administrative staff actively undermined Respondent's authority and demeaned him in front of students and other teachers. They told teachers and students that they were trying to get rid of Respondent and that Respondent was a bad teacher. When Respondent referred disruptive students to the office, the administrative staff laughed or simply refused to take any follow-up action. On one occasion when Respondent referred a student to the office for throwing an eraser at another student, an assistant principal told the misbehaving student that he should have thrown the eraser at Respondent instead. Respondent "lost face" around the school. It became known that the students could misbehave in Respondent's classes with impunity. Even the students understood that Respondent was assigned only the most difficult of students. Although there was a new principal at Miami Norland Senior High School during Respondent's last year of teaching, the new principal, coincidentally, had been the principal for the 1984 summer session at Parkway Junior High School where Respondent had been involved in an incident with a student prior to taking his year's leave of absence from teaching. Under the new principal's administration, Respondent was retained in his assignment of five low-level math classes and was moved to the classroom directly across from the office. No evidence was offered that the new principal understood that efforts had been made to keep Respondent's authority undermined and to make him quit. It is clear, however, that no steps were taken to stop or reverse the damage to Respondent's reputation and ability to teach. In response to Respondent's referral to the Employee Assistance Program, Respondent did make the contact required of him. In fact, there were numerous contacts between Respondent and the personnel involved in that program. Additionally, Respondent was seen by Dr. Goldin, a mental health professional, on four occasions between April and June of 1990. Between June and September of 1990, he also saw an associate of Dr. Goldin eight times in individual sessions and four times in joint sessions with his wife. Respondent repeatedly requested transfers from his teaching assignment at Miami Norland Senior High School. Some of the requests were made to his principals and some of them were sent to the Office of Professional Standards. From the time that Respondent returned to his teaching duties after his leave of absence during the 1984-85 school year, he requested transfers each and every year. He requested a transfer at least twice during his last year of teaching. Some of the requests for transfer were hardship requests and others were normal requests. Additionally, both Dr. Jaslow in 1985 and Dr. Goldin in 1990 recommended to the Office of Professional Standards that Respondent be transferred to a different school. All requests for transfer were ignored. During the last years of Respondent's teaching career, in addition to the stress placed upon him by the administrative staff's efforts to undermine and ridicule him, he experienced additional stress as a result of his wife's serious illness. He told a number of the administrative staff about the problem at home. The difficulty under which that placed him was part of the reason for the referral to the Employee Assistance Program. During those last years, during conferences with administrative staff regarding his performance, Respondent exhibited anxiety and showed signs of stress. He accused the administration of undermining him and of treating him unfairly. He even attributed some of the problems he was experiencing in the classroom to the administrators. Their reaction to Respondent's accusations was to accuse Respondent of being paranoid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Respondent without pay for the 1990-91 school year and reinstating him as a full-time classroom teacher thereafter at a school other than Miami Norland Senior High School. DONE and ENTERED this 27th day of January, 1992, at Tallahassee, Florida. LINDA M. RIGOT 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 27th day of January, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4936 Petitioner's proposed findings of fact numbered 1, 4, 33, 35-37, 65, 67, 68, 72, and 74 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2, 3, 8, 11, 19, 32, 38, 58, 71, 75, and 77 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 5-7, 9, 10, 12-18, 20-31, 39-57, 59-64, 66, 69, 70, 73, and 76 have been rejected as being unnecessary in determining the issues involved in this proceeding. Petitioner's proposed finding of fact numbered 34 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1, 4-11, 13, and 14 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Copies furnished: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Octavio J. Visiedo Superintendent of Schools Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire 1450 N.E. Second Avenue, Suite 301 Miami, Florida 33132 William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2929 S.W. Third Avenue, Suite One Miami, Florida 33129
The Issue The issue here is whether the Superintendent has shown "good and sufficient reasons" for recommending that Mr. Udell be returned to annual contract status as a teacher employed by the School Board of Hamilton County, Florida.
Findings Of Fact For fourteen years, Mr. Udell has been employed by the Hamilton County School Board as a teacher. He is presently assigned as an auto-mechanics instructor at Hamilton High School. He has held a continuing contract for the last seven years. The principal of Hamilton High School has been Mr. Maurice Hammond for the last two years. It appears that he is less indulgent of rule violations than was the former school principal, Mr. William Edwards. Mr. Hammond has cracked down on activities such as student card playing which at one time were tolerated by the former administration. This has been at least a partial cause of friction between the old teachers like Mr. Udell and the new principal. It is the school policy that if a student is absent for more than nine days in a nine-week grading period, he will receive a sixty-five or lower grade for that period. With respect to the grade of Tim Holland, a student of Mr. Udell's for the 1979-1980 school year, Mr. Udell did not follow that policy. The policy was known to him through the teachers' handbook which he received at the beginning at the school year. In Mr. Hammond's opinion, Tim Holland would not have graduated if it has not been for Mr. Udell's violation of the nine-day rule. Tim Holland missed a total of seventy-five days of the 1979-1980 academic year. According to Hamilton High School policy, each student must receive nine grades during each nine-week grading period. Mr. Udell has not complied with that policy. During the last complete school year, his students received on the average only three grades. Hamilton High School students who are seniors and have a class grade average of ninety-five or above are exempt from quarter examinations. During the 1979-1980 year, on at least one occasion, Mr. Udell exempted from quarter exams several senior students who had less that a ninety-five average. The teachers of Hamilton High School compute the grades for their assigned students. In the 1979-1980 year, Mr. Udell had one of his students compute grades for him. The result was numerous computation errors, all in favor of the students. For instance, Leonard Phillips had a seventy-four for the first grading period and an eighty for the second period yet he received an average grade of eighty for the whole semester. Jack Alford received a sixty the first period, a sixty-four for the second period and an average of seventy for the semester. For the first semester of 1979-1980 alone, at least sixteen of Mr. Udell's forty-nine students received incorrect grades. Prior to Mr. Hammond's administration at Hamilton High School, there were occasions when students were allowed to play cards during class periods. On April 2, 1979, during a visit to Mr. Udell's classroom, Mr. Hammond observed numerous students playing cards in the third and fourth periods. Halter in the afternoon when the principal spoke with Mr. Udell about the indent, he responded that card playing occurred in other parts of the campus and "the best thing to do was to give me that oil [needed to operate an engine]." This response is typical of Mr. Udell's attitude when deficiencies in his teaching have been pointed out to him. He attempts to rationalize them by shifting repairability onto others. He explained his grading errors by complaining about not having a student assistant or a planning period; yet, with only three grades per student for the whole year, it would take little time for him to accurately compute the grades himself. In one instance, on January 14, 1980, Mr. Udell left an inadequate lessor plan for a substitute teacher. The plan which was for three classes for two periods stated in its entirety (spelling etc. as on original): 1-14-80 Auto Class 1-2 P. Class Basic Tune-up on six cyl. engine Practice on training unit that is on roll cabinit tools are in top drawer in roll cabinit Check training unit with sun scope This is for all classes one group work on engine one on training unit, then change over. Udell A 30-gallon drum of cleaning solvent was sent to Mr. Udell's auto mechanic shop without a purchase order being first submitted. This is contrary to the purchase procedure established at Hamilton High School. It resulted, however, because the salesman sent the solvent before he had Mr. Udell's approval. Mr. Udell was therefore not at fault for there not being a purchase order prior to the delivery of the goods. Evidence was presented which shows that Mr. Udell adequately handles many of the instructional aspects of his teaching responsibilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the School Board of Hamilton County, Florida, enter a final order pursuant to Section 231.36(4), Florida Statutes, returning Mr. Lawrence Udell to an annual contract of employment as a member of the instructional staff, effective from the beginning of the 1980-1981 school year. DONE AND RECOMMENDED this 7th day of January 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January 1981.
The Issue Whether there is just cause to terminate Respondent’s employment with the school district.
Findings Of Fact The Petitioner is the entity responsible for the operation and administration of the Polk County School District. Such duties include all personnel decisions affecting employees of the school district. The Respondent was an employee of the school district and was assigned to teach third grade at Sleepy Hill Elementary School in Lakeland, Florida. Respondent’s employment was pursuant to a professional services contract. In accordance with the negotiated contract for professional educators working within the Polk County School District, Petitioner follows a progressive discipline program. All Board employees are afforded opportunities to improve performance deficiencies before termination of their employment. In this case, Petitioner asserts that the falsification of student grades into the Pinnacle grading system was Respondent’s final action supporting just cause for termination. On March 17, 2014, Respondent received a verbal warning with written confirmation due to ongoing absenteeism and the failure to timely complete paperwork regarding absences from school. On March 31, 2014, Respondent received a written reprimand due to Respondent’s continuing absences and other irregularities in taking leave. Respondent had been an employee of the school district long enough to understand the leave procedures required in order to take absences from school. On January 25, 2015, despite the two prior notifications regarding leave, Respondent was absent without following the proper leave procedures. On February 3, 2015, Respondent’s principal recommended to the superintendent of schools that Respondent be disciplined by suspension without pay. On March 16, 2015, Respondent was suspended without pay for three days. The superintendent cited the grounds for the suspension as Respondent’s continued failure to comply with leave procedures and restrictions. Thereafter, based upon Respondent’s poor classroom performance coupled with observed deficiencies, Respondent was put on a professional development plan that set forth criteria that required Respondent’s improvement. On April 15, 2015, Respondent, her representative, and her principal met to review the Respondent’s performance of her responsibilities. During the discussion, a report from the school district’s Pinnacle grading system was reviewed. The Respondent’s students all received the same grade. When questioned, Respondent assured her principal that she had accurately entered the students’ grades. In fact, Respondent did not accurately enter her students’ grades. In the course of less than a minute on the Pinnacle system, Respondent entered all “4s” for her students on one section of a reading test. The grades entered by Respondent did not match the grades reflected on her grading sheets. Additionally, four of the grades entered on a second section of the weekly test were entered incorrectly. Respondent did not truthfully answer questions regarding the entry of the grades and did not accept responsibility for falsifying the grades entered. Had Respondent simply confessed error in entering the grades and truthfully stated why she hurriedly entered the grades incorrectly, her character would not be called to question. Instead, Respondent wrongly maintained she had accurately entered the grades. Respondent’s honesty was called into question when she did not readily acknowledge her error. Thereafter Respondent’s principal recommended to the district’s superintendent that Respondent’s employment be terminated. By letter dated November 16, 2015, the superintendent advised Respondent that it would be recommended to the Board that her employment be terminated. The teachers’ bargaining agreement pertinent to this case provides for progressive discipline. Prior to termination (step 4), there are three prior levels of discipline: verbal warning; written warning; and suspension. In this case Petitioner complied with the progressive discipline required by the bargaining agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Polk County enter a final order terminating Respondent’s employment with the school district. DONE AND ENTERED this 3rd day of August, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 3rd day of August, 2016. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Donald H. Wilson, Jr., Esquire Boswell and Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830 (eServed) Jacqueline Byrd, Superintendent Polk County School Board 1915 South Floral Avenue Post Office Box 391 Bartow, Florida 33831 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 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)
The Issue The issue is whether Petitioner may terminate Respondent’s professional service contract as a teacher for unsatisfactory performance or incompetence.
Findings Of Fact Petitioner first employed Respondent on August 23, 1977, in a paraprofessional position as a bilingual tutor. While so employed, Respondent attended Nova University working toward a degree in early education. She earned her degree in 1989 and received a teaching certificate in elementary education and English Speakers of Other Languages (ESOL). Respondent’s first instructional assignment was as an ESOL teacher at the start of the 1989-90 school year. She did not have a classroom, but taught as a pullout teacher. She remained in this position for four years. Respondent was first assigned to a regular classroom in the 1993-94 school year when her ESOL program was terminated. She taught a combined first and second grade class for the 1993- school year and then taught a second grade class for the 1994- school year. On March 1, 1994, Susan Griesinger became the principal of Tice Elementary School. There was little substantive contact between Dr. Griesinger and Respondent during the 1993-94 school year. During the 1994-95 school year, Dr. Griesinger twice observed and evaluated Respondent’s classroom performance. The evaluations were satisfactory. The Summative Observation Instrument for an observation of a second-grade mathematics class on November 17, 1994, contains numerous indications that Respondent has adequately organized and presented the instructional material. Student misbehavior was not an issue during the class. Dr. Griesinger concludes the evaluation by writing: “Your enthusiasm is catching! Many concepts in one lesson. Students enjoyed the clocks.” Dr. Griesinger prepared a second Summative Observation Instrument for an observation of another second-grade mathematics class on February 27, 1995. This evaluation is much the same as the first and concludes: “This was a hard concept. I am glad you gave the children actual shapes.” On March 6, 1995, Dr. Griesinger prepared Respondent’s year-end Performance Assessment. Respondent received satisfactory grades in all 40 categories. These grades are “Effective level of performance,” which is the only satisfactory grading option on the form. However, for two categories for which Respondent received satisfactory grades, Dr. Griesinger noted the need for “Focus for development/feedback.” Falling under “Presentation of Subject Matter,” the two categories were “Teaches a systematic process for developing academic values” and “Demonstrates knowledge of subject matter.” The Performance Assessment concludes: “Carmen has tried very hard this year to reach all students. She has a positive attitude.” Between the preparation of the Performance Assessment and the end of the 1994-95 school year, Dr. Griesinger and her assistant principal, Holly Bell, began receiving parent complaints about Respondent. The parents questioned whether Respondent could control her class. When Dr. Griesinger asked Respondent about the complaints, Respondent attributed the problems to a handful of misbehaving students. The following school year, Dr. Griesinger observed Respondent’s teaching more closely to see if there was a problem. Dr. Griesinger, Ms. Bell, and the guidance counselor conducted several informal observations of Respondent’s classroom. During the summer, Tice Elementary School had received a grant to hire an outside teaching consultant to train teachers in peer coaching. Dr. Griesinger asked the consultant, Kaye Sutcliff, to observe Respondent and make suggestions. Ms. Sutcliff observed Respondent and suggested that she find other employment. On October 24, 1995, Dr. Griesinger sent a memorandum to Respondent confirming a meeting that they had had the prior day. The memorandum memorializes a concern with the “lack of classroom management we see this year” and states that Respondent is not consistent with discipline. The memorandum also mentions another concern as to how Respondent “present[s] your content to the students.” The memorandum elaborates: Last year I had a difficult time following your lesson when I came in to do your observation. I talked with you about some things you could have done differently. You need to be very specific when you are introducing new concepts. The memorandum concludes that Dr. Griesinger will be doing formal and informal observations to assist Respondent. The memorandum restates that Dr. Griesinger has asked Respondent to work closely with her coach and video and audio tape her lessons to see how she can improve and make her content clearer. The memorandum tells Respondent that Dr. Griesinger, Ms. Bell, and Lynn Pottorf will work with Respondent to try to help her. Ms. Pottorf was the Elementary Generalist Coordinator employed in the District office. On January 4, 1996, Dr. Griesinger wrote a memorandum to Dr. Madeline Doran, Director of Personnel, asking that she place Respondent in the Intensive Assistance Program as soon as possible due to “extreme difficulty with classroom management, curriculum content and lesson delivery.” Acting on the advice of Dr. Griesinger and Dr. Doran, Dr. Jerry Baker, Assistant Superintendent for Human Resources, informed Respondent by letter dated January 24, 1996, that he was placing her in the eight-week Intensive Assistance Program. As part of the program, Dr. Doran formed an assistance team consisting of Dr. Griesinger, Ms. Bell, Ronalee Ashby, and Ms. Pottorf. Ms. Ashby is the District Coordinator of Personnel Services. The purpose of the team is to help the teacher as much as possible through observing her classroom teaching and discussing their findings with the teacher at weekly meetings. The team reviews the teacher’s performance and recommends further action to Dr. Doran. The Intensive Assistance Program informs the teacher that, based on input from the team and Dr. Doran, Petitioner may determine that the teacher’s performance is adequate, extend the Intensive Assistance Program for another eight weeks, recommend reassignment to a more suitable position, withhold recommendation for an annual reappointment, determine that the teacher’s performance is inadequate and recommend dismissal or recommend acceptance of the teacher’s resignation. On January 30, 1996, Ms. Ashby had a meeting with Respondent during which Ms. Ashby explained the Intensive Assistance Program in detail. Respondent completed an interview form for the Intensive Assistance Program. In the form, Respondent noted no particular problems interfering with her teaching. She stated that she was “okay with subj[ect],” but had some problems gathering materials. She mentioned two students out of 20 in her class who presented behavioral problems and one student who presented academic problems. She stated that she would like to get the students more involved. She stated that her general health was “good--some headaches,” and she denied having any nonschool problems adversely affecting her teaching. On March 20, 1996, Jo Ellen Kessler, Coordinator of Curriculum Services, conducted a two-hour observation, concluding that she never saw Respondent provide instruction for the students. Ms. Kessler stated: Dr. [Griesinger] asked that I spend at least one hour in the classroom. I spent approximately two hours there because I kept waiting for Ms. Hernandez to provide instruction for the students. During the time I was in the classroom, there was no review of any material. There was no introduction, no initial instruction. No clear directions were given for doing the activities on the chalkboard. The students were given no reason for learning. There was no motivation for learning, no personal connections made. There were no instructional materials prepared for them to use during the lesson, other than the things written on the chalkboard--certainly not the best way to engage students. There was no evidence of any materials prepared for students of differing abilities. There was no instruction given to help any of them learn the skills involved. . . . The children who behaved nicely were not really acknowledged for their attention or behavior. No specific praise was given to any student. Most of the well behaved children were not given an opportunity to be involved in the tasks. They sat with nothing to do. The students were given no clear expectation of what their behaviors should be. They had no limits set, no idea of what was acceptable and what was not. The students were not engaged in any of the tasks. They hung over their desks, put their heads down and appeared quite bored. In summary, the students did almost nothing for a two-hour period. The teacher was not teaching and was completely ineffective in managing their behavior. They were not involved in meaningful review or practice. Their behavior would be much improved if they had well-planned instruction and materials and if they were given meaningful learning tasks. The children in the room appeared to be bright and willing to learn, but they were not given the opportunity to do so. On March 22, 1996, Dr. Baker, Assistant Superintendent for Human Resources, sent a letter to Respondent giving her official notice, pursuant to Section 231.36(3)(e), Florida Statutes, that her performance was “unsatisfactory” and, if the deficiencies were not corrected next year, he would recommend that the School Board terminate her at the close of the 1996-97 school year. On March 25, 1996, Dr. Griesinger prepared Respondent’s year-end Performance Assessment. In contrast to the preceding year, Respondent received only four satisfactory grades, all in conformance to school and district rules. Nearly all of the other grades were “Unacceptable level of performance observed.” The Performance Assessment concludes: “Carmen needs to improve drastically in all areas.” On the same day, Ms. Bell had to go to Respondent’s classroom to restore order. Hearing Respondent and students shouting from outside the door, Ms. Bell found seven students out of their seats and the remaining students seated with nothing to do. The prior day a substitute teacher had had no problem with the class. On or about April 4, 1996, Respondent went on medical leave for the rest of the school year due to anxiety and menstrual problems. At the hearing, Respondent produced little, if any, evidence concerning the onset of her medical problems or their effect on her teaching. The preponderance of the evidence proves that demands that Respondent improve her classroom performance preceded the medical problems, although Respondent’s complaints of anxiety may have been exacerbated by these demands. Dr. Griesinger hired a substitute teacher for the remainder of the school year. The substitute teacher had no problem teaching Respondent’s class for the next two months. Respondent returned to work at the start of the 1996-97 school year with clearance from her physician. She was assigned a second grade class. Separate observations on September 4, 1996, by Dr. Griesinger and Ms. Bell record a boy barking like a dog in the back row during class without notice from Respondent, a boy sleeping so soundly that Respondent twice could not awaken him and gave up trying with a shrug of her shoulders, and motivated students losing interest after Respondent never called on them despite having their hands up for long periods of time. In all cases of misbehavior, Respondent imposed no consequences. During an observation on September 5, 1996, Respondent repeatedly asked the class what mountains look like. While she was doing so, one boy, who had been in and out of his seat for five minutes, managed to get the teacher’s manual off Respondent’s desk, give it to the observer, and tell the observer that this is where Respondent gets all her questions. At the same time, a girl, who was playing while in her seat, made two trips to the bathroom in 30 minutes, spending the second visit playing in the bathroom, turning the fan on and off. After teaching from August 20 through September 12, 1996, Respondent again went on medical leave. Dr. Griesinger hired a new teacher to take over the class. On October 3, 1996, Ms. Ashby sent a memorandum to the then-counsel for Petitioner advising him that Respondent’s classroom performance has continued to deteriorate and that he should review the file for proceeding with a predetermination hearing for “incompetency,” noting that Petitioner had given her notification last spring that she had “one year and six weeks to improve.” On October 21, 1996, Dr. Griesinger sent a letter to Respondent confirming their conversation of October 7 in which Respondent informed Dr. Griesinger that she would be taking the year off for medical reasons. The letter asks Respondent to call Dr. Griesinger prior to October 25 if this is incorrect. Respondent did not call Dr. Griesinger in response to the October 21 letter. Instead, a few days before Christmas vacation was to start, Respondent contacted Dr. Griesinger and told her that she would be returning to teach when school started again in January. Dr. Griesinger justifiably decided not to disturb the second grade class that the replacement teacher was handling quite well. Dr. Griesinger instead formed a new fourth grade class and assigned it to Respondent. Respondent began teaching the class on the first day of school after vacation, which was January 6, 1997. On January 9, 1997, Ms. Pottorf observed Respondent’s fourth grade social studies class. She found that the students were well-behaved and on-task for only about 10 minutes. The lesson was “disjointed,” and Respondent displayed an obvious unfamiliarity with the subject matter, as evidenced, for instance, by her inability to find a definition for “pioneer” in the text or her incorrect assumption that the Miami Indians were a tribe in Florida, not Ohio. She referred to the two or three students who had read the lesson as “her friends who knew the answers,” excluding the remainder of the class. Respondent failed to guide students’ responses, allowing the same answers and silly answers to continue. Unaware of the time, Respondent allowed the lesson to end without review or conclusion. The next class was reading. Respondent immediately lost the attention of the class by engaging in a discussion with a child about the seating arrangements. For no good reason, Respondent required the class to cover material that had been covered earlier in the week. She displayed a poor command of the reading material. For instance, telling the students that “errors” were to be called “challenges,” Respondent proceeded to use the words, “error” or “mistake” throughout the lesson, each time adding that “We are to call them challenges.” Randomly checking workbooks, Respondent failed to note which students had done their work and which had not. After a student was left without a reading partner, Respondent said she would be his partner, but she never returned to be his partner. When the students became loud and off-task, Respondent required them to call out the reading words in unison with her arm signals. She made them repeat words numerous times, to the obvious irritation of the students. After one child asked her not to do this, and, in response to Respondent’s inquiry, the rest of the class asked to be spared the repetition, Respondent agreed not to continue asking them to repeat the same word. But she continued to do so. At one point, she made them start over because they did not show enough energy, as the task became filler for the period, which ended without review or conclusion. On the same date, Ms. Bell did an observation of Respondent. She noted that the majority of the students were off-task. Respondent repeatedly tried to restore order by telling the students to look at the rules, but there were no rules posted anywhere in the classroom. On January 10, 1997, Respondent enlisted the students’ assistance in adopting classroom rules. A list of seven rules was disorganized, with some rules encompassing all of the others. The students became more restless when Respondent asked about consequences. No one answered her questions about consequences as the process became more disordered. Respondent evidently did not understand the point system that she had developed, leaving the whole system confusing and unmanageable. Later, a child privately asked to be Respondent’s helper. Respondent announced this request to the class, but did not otherwise acknowledge it. Respondent moved into a lesson on pronouns, but could not define a pronoun. Abruptly leaving this lesson after only three minutes, Respondent presented a new lesson on narrative writing, which she explained in one rambling sentence interspersed with frequent allusions to the rules and consequences that they had just worked out. Few students were on-task by this time. Respondent taught through February 6, 1997. At that time, Petitioner suspended her for her poor classroom performance. Respondent’s three major problems in the classroom were that she did not know her material, could not teach, and could not control the behavior of her students. She wasted time in transitions, such as to lunch, physical education, or taking attendance. She missed many opportunities to reinforce good behavior and frequently reinforced bad behavior by ignoring visible defiance or even unwittingly rewarding it. She confused students as often as she instructed them and displayed no idea of how she could explain content to her students. She sometimes displayed an uncertain grasp of even elementary materials. The result of these deficiencies is that Respondent impeded learning by repeatedly failing to communicate with and relate to the students to the point that they were deprived of a minimum educational experience. There is evidence of effective instances of teaching by Respondent. Undoubtedly, Respondent had some days that were better than others. However, Respondent’s performance as a teacher was so bad so often that she was ineffective and incompetent as a teacher. Numerous individuals observed her work in the classroom and found it seriously deficient. Ms. Ashby ultimately opined that, after a long career in education, Respondent, whom she described as a “horrible teacher,” was “one of the worst teachers I ever worked with.” Respondent tried to show at the hearing that her teaching problems were the result of her health problems. As already noted, the evidence shows that her teaching problems preceded the emergence of her health problems. However, even if the health problems preceded the teaching problems, Respondent, with the approval of her physician, returned to the classroom in January 1997 and performed abysmally. There is absolutely no evidence to suggest that her health problems, or other mitigating factors, induced Respondent (and her physician) to decide that she could return to the classroom in January. The impact of her poor performance was dramatic, as the learning of her students slowed and even ended upon her return to the classroom. Respondent argues that Dr. Griesinger and others in the administration were biased against her for reasons that are unclear from the record. Although Dr. Griesinger decided by no later than January 1997 that Respondent was not going to be able to eliminate her performance deficiencies, this determination was supported by the record and was not indicative of bias. Dr. Griesinger’s determination did not distort her observations, which were corroborated by several other individuals. Respondent understandably draws support from Dr. Griesinger’s initial positive evaluation. This evaluation was more likely due to a combination of her carelessness and optimism, as she converted an evaluative instrument to a device designed to encourage and promote one of her classroom teachers. Most likely, Respondent was ill-suited to assume the responsibilities of a classroom teacher when she began teaching second grade in the fall of 1993, but may have initially escaped the serious problems that later befell her due to a combination of factors, such as the youth of her students, extraordinary effort of what was effectively a new teacher, and inattentiveness of the school administration.
The Issue The issue is whether the district school board has just cause to dismiss one of its elementary school teachers for just cause during the term of his professional service contract, based upon the teacher’s having received three consecutive annual performance evaluation ratings of Needs Improvement.
Findings Of Fact The School Board is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant, it was Manset’s employer. During the three school years at issue, from 2015 to 2018, Manset taught second grade at Oakland Park Elementary School (“Oakland Park”), which had been his work location since November 2012. Manset had started teaching in the District in August 2003. This case arises from the District’s decision not to reinstate Manset to his former teaching position upon Manset’s return, in 2020, from an approved, two-year leave of absence. As grounds for this decision, the District relies upon the “three-strikes rule” prescribed in section 1012.33, which (i) makes it a disciplinable offense, referred to herein as “Poor Ratings,”1 for a teacher to be given three consecutive annual performance ratings of less than Effective, thereby subjecting the guilty party to dismissal for “just cause” during the term of his or her employment contract; and (ii) authorizes a district school board not to renew the professional service contract (“PSC”)— after the end of said PSC’s one-year term—of a teacher who has received three consecutive annual performance ratings of less than Effective. § 1012.33(1)(a), (3)(b), Fla. Stat. For some background, section 1012.34 requires school districts to evaluate the performance of every teacher they employ, at least once per year. Each district must develop an “evaluation system” for this purpose, which is required to differentiate between four levels of performance: Highly 1 Other disciplinable offenses, which, if proved, constitute just cause for dismissal, include misconduct in office, gross insubordination, and willful neglect of duties. See § 1012.33(1)(a), Fla. Stat. “Poor Ratings”—which is the undersigned’s shorthand for the full statutory definition of the offense, i.e., “three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under s. 1012.34”—is thus comparable to, e.g., misconduct in office as a basis for terminating a teacher’s employment. Effective, Effective, Needs Improvement, and Unsatisfactory. § 1012.34(2)(e), Fla. Stat. At least one-third of a teacher’s evaluation must be based upon student performance, and at least one-third upon “instructional practice.” § 1012.34(3)(a), Fla. Stat. Accordingly, the District uses an evaluation system in which a teacher is given a numeric score of between 1 and 4 for each of three, separately-weighted indicators of performance: Instructional Practice (“IP”)—60%, Student Performance (“SP”)—35%, and Deliberative Practice/Growth Plans (“DP”)2—5%.3 The average of the teacher’s three weighted scores equals his or her Final Score for the school year. Because the SP score takes some time to process, the teacher’s Final Score for any given year is usually not available until the fall of the next school year. The teacher’s Final Score determines his or her level of performance according to the following scale: Label Highly Effective Effective Needs Improvement Unsatisfactory Details 3.4 – 4.0 2.5 – 3.399 2.0 – 2.499 1.0 – 1.999 The IP score, which contributes the most to a teacher’s Final Score, is based upon the firsthand knowledge of an eyewitness who has seen the teacher in action in the classroom. While observing the teacher instructing his or her pupils, an administrator, such as the principal or an assistant principal, measures the teacher’s performance against a broad menu of objective criteria, exercising judgment and discretion in determining how well the teacher is implementing best practices and strategies. Although arrived 2 The indicator DP, which is relatively insignificant given its low weight of just 5%, is basically a gimme for which most teachers receive the maximum score. Having no bearing on the outcome of this case, DP will not be discussed in depth. 3 For the 2015-2016 school year, indicators IP and DP were weighted a bit differently, at 64% and 1% respectively. This minor detail is immaterial to the instant case and, thus, will be ignored hereafter. at through the application of objective criteria, which confine the evaluator’s discretion, the IP score is inherently a subjective, empirical assessment reflecting the evaluator’s professional opinion of the teacher’s actual performance. The SP score, in contrast, results from a regression analysis of the scores of the teacher’s students on a standardized test or tests. The District uses a statistical model that is supposed to isolate, from the testing data, a quantum of student growth or academic achievement attributable to the teacher. The statistician(s) who determine the teacher’s student achievement quantum do so based solely upon the numbers, without seeing the teacher in action. In this sense, the SP score is objective and uninfluenced by any individual’s subjective opinion of the teacher’s performance. Manset received an annual performance evaluation for each of the relevant school years, namely 2015-2016 (“Year 1”), 2016-2017 (“Year 2”), and 2017-2018 (“Year 3”). His respective IP scores for each of these years were 2.809, 2.777, and 2.950, meaning that he was rated as an Effective teacher under this most telling indicator of performance. Manset’s SP score for each of the three subject years, however, was only 1.5, which translates to a low rating of Unsatisfactory for this significant performance indicator. Manset’s Final Scores for the years in question were as follows: Year 1: 2.253 Year 2: 2.391 Year 3: 2.495 Based on the foregoing Final Scores, which reflect the strong downward drag of his low SP numbers (worth 35%, remember), Manset received three consecutive annual performance evaluation ratings of Needs Improvement, pursuant to the Final Score Scale (reproduced above in paragraph 6). On or about May 16, 2018, some six months before Manset’s Year 3 Final Score would be known, when it was assumed that Manset would be returning to Oakland Park the following year, Manset received notification that he would be recommended for reappointment as an instructional employee for the 2018-2019 school year. Prior to the 2018-2019 school year, however, Manset requested, and was granted approval to take, personal leave without pay for a period of one year, in accordance with School Board Policy 4409. His last day of work in the District was in August 2018. After that, Manset relocated to Maryland, where he accepted a teaching position for the 2018-2019 school year. With his leave scheduled to end on June 30, 2019, Manset was required to notify the District, no later than March 1, 2019, of his plans for the 2019-2020 school year. Manset’s Final Score for Year 3 was ready in or around November 2018. Had he not been on leave at that time, Manset would have been subject to dismissal during the term of his then-current PSC on a charge of Poor Ratings, pursuant to section 1012.33(1)(a), because his performance rating of Needs Improvement for Year 3 was the third such rating in as many years. As it happened, however, Manset was not subject to dismissal in November 2018, because he was not then working in the District. Moreover, because Manset was on leave when his Year 3 evaluation was complete, the District elected not to provide him the Final Score (and rating of Needs Improvement) at that time. Rather, it was decided that Manset would receive his final evaluation for the 2017-2018 school year upon his return. Manset timely notified the District that he wanted to continue his personal leave for another year. The District approved Manset’s request, which is a little curious, in light of the three-strikes rule.4 This second, one- year leave would expire on June 30, 2020. Taking advantage of this 4 No explanation for this decision was given at hearing. additional leave of absence, Manset remained in Maryland and did not teach in the District during the 2019-2020 school year. Before March 1, 2020, Manset timely notified the District that he would be ready to return to work after his two-year leave expired, and he asked to be reinstated for the 2020-2021 school year. Shortly thereafter, District administrators phoned Manset to inform him that he would not be permitted to return to his former position due to the three-strikes rule. By letter dated May 27, 2020, the superintendent officially advised Manset that, under the three-strikes rule, Manset was “not to receive a contract” and, accordingly, would not be reinstated within the Broward County Public Schools. In this letter, the superintendent cited section 1012.33(1)(a) as supporting authority for his decision. He seems to have had section 1012.33(3)(b) in mind, however, which is on point with the assertion that Manset was “not to receive a contract.” As discussed below, teachers are “statutorily entitled to renewal of their PSC unless their performance [is] unsatisfactory.” Lewis v. Broward Cty. Sch. Bd., 298 So. 3d 672, 674 (Fla. 4th DCA 2020). The parties have stipulated that Manset “is currently employed as a teacher pursuant to Section 1012.33, Florida Statutes.” JT. PRE-H’G STIP. at 10. Ordinarily, as applied to a teacher, the term “currently employed” would be synonymous with “under contract.” There is no evidence, however, that Manset’s PSC was renewed for the 2018-2019 school year, much less for any subsequent year. Because Manset was on approved leave without pay and did not teach in the District at any time after August 2018, the undersigned infers that Manset’s 2017-2018 contract expired, leaving him without a PSC afterwards.5 5 If the District renewed Manset’s PSC for 2019-2020, then it did so with actual knowledge that he had previously received three consecutive ratings of Needs Improvement. Manset’s undisputed status as a current employee of the District is (as far as the evidence shows) a function of the personal leave that he took, not the result of his holding an unexpired PSC.6 Consequently, despite the fact that Manset is still a District employee, the undersigned cannot find, as a matter of fact, that the District is seeking to dismiss Manset during the term of his contract, because his last contract’s term expired sometime in 2018. On June 24, 2020, the District issued an Administrative Complaint against Manset, predicated on a charge of Poor Ratings. The District seeks, pursuant to the complaint, to terminate Manset’s employment for just cause. In his defense to the Poor Ratings charge, Manset disputes the validity of the SP score that he received for Year 1, but otherwise does not contest the IP and SP scores he was awarded for the years in question. His main argument, in brief, is that the Needs Improvement rating for Year 1 should be tossed out due to the allegedly faulty SP score, thereby compelling the ultimate determination that Manset, having been given only two, substantively true consecutive ratings of Needs Improvement, is not guilty of Poor Ratings. The facts forming the basis of Manset’s objection to his Year 1 SP score are straightforward and not disputed. In February 2016, Manset was injured in an automobile accident and could not work for more than two months. He was on approved sick leave for ten weeks starting February 20, 2016. Thus, as a result of the car crash, Manset missed 50 days of class out of a total of 166—or 30% of the school year. Looked at another way, Manset was absent (with permission) from his classroom for 60% of the spring semester. 6 If Manset had lost his status as an employee by taking leave, then he would have needed to be rehired (as opposed to reinstated) upon his return, costing him the right to a PSC. See § 1012.335, Fla. Stat. No one has suggested that that happened. On the contrary, but for the three-strikes rule, Manset doubtless would have received a new PSC when he returned from leave because, under Policy 4409, he was (and, as this is written, still is) employed by the District, albeit without a current contract. During most of Manset’s absence, his second-grade class was taught by a “pool sub,” i.e., a substitute teacher who worked only at Oakland Park and reported to that campus every day. The pool sub was in Manset’s classroom for approximately 30 days. Regular certified substitute teachers covered the balance. The regression analysis that the District uses to compute a teacher’s SP score does not factor in the contributions of substitute teachers as a predictor variable. Consequently, Manset’s SP score for Year 1 necessarily reflects the positive or negative impact, if any, that the substitute teachers (especially the pool sub) had on student growth or achievement. Manset argues, in effect, that his SP score for that year is, for that reason, unreliable and invalid, making his Year 1 Final Score untrustworthy and incapable of supporting a Poor Ratings charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against David R. Manset for lack of jurisdiction; alternatively, if Respondent currently holds an unexpired PSC, then he may be dismissed for just cause during the term of that contract. DONE AND ENTERED this 16th day of March, 2021, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2021. COPIES FURNISHED: Andrew Carrabis, Esquire Broward County School Board 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Robert F. McKee, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Katherine A. Heffner, Esquire Robert F. McKee, P.A. 1718 East 7th Avenue, Suite 301 Tampa, Florida 33605 Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue, Tenth Floor Fort Lauderdale, Florida 33301-3125
The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)1, 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes (2002-2005),2 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i), and, if so, what discipline should be imposed.
Findings Of Fact Ms. West holds Florida Educator’s Certificate 666407, which covers the area of physical education and is valid through June 30, 2012. She began her teaching career in 1990. At all times pertinent to this case, Ms. West was employed as a physical education teacher at Azalea Middle School in the Pinellas County School District. By Final Order dated February 20, 2004, the Education Practices Commission found Ms. West guilty of violating Subsection 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), by, among other things, making derogatory remarks to students and disclosing students’ grades without their permission. The Education Practices Commission suspended Ms. West’s educator certificate for the summer session for 2004 and placed her on probation for two years, effective February 20, 2004. The violations for which Ms. West was disciplined occurred while Ms. West was a teacher at Gibbs High School. In an effort to give Ms. West a fresh start, she was administratively transferred from Gibbs High School to Azalea Middle School beginning August 2001. Ms. West was assigned to teach seventh-grade physical education. Connie Kolosey was the seventh-grade assistant principal at Azalea Middle School who was responsible for supervising everything having to do with the seventh grade, including the seventh-grade teachers. The principal at Azalea Middle School received an anonymous letter early in the 2001- 2002 school year complaining that Ms. West was using offensive language and making derogatory remarks to students. About the same time as the arrival of the anonymous letter, Ms. Kolosey became aware that Ms. West was using her cell phone in class to call parents to talk about students’ behavior. Ms. Kolosey met with Ms. West on September 7, 2001, to discuss these issues. Ms. West felt that the anonymous letter came from individuals who were involved in Ms. West’s problems at Gibbs High School. The use of the cell phone was discussed during the conference. Ms. West stated that when she was at Bay Pointe Middle School she had used the cell phone to call parents during class and found it to be an effective way to curb student misbehavior. Ms. West indicated that she would leave the gymnasium and make the cell phone calls in the hallway. Ms. Kolosey explained to Ms. West that the use of cell phones to call parents during class was not appropriate. Students could be embarrassed by having Ms. West discuss their discipline issues in front of the class or in the hallways. Additionally, it was not a safe practice to leave the students in the gymnasium while she went into the hall to make telephone calls. On February 8, 2002, Ms. Kolosey had another conference with Ms. West to discuss accusations which had been made by several students that Ms. West had been making derogatory remarks to them about their physical appearance. Ms. West denied making the comments. During the spring of 2002, the parents of one of Ms. West’s students demanded that their child be removed from Ms. West’s class for comments which Ms. West allegedly made to their child, S.B. Ms. Kolosey investigated the matter and could find no one to corroborate the allegations made by S.B. and her parents. Thus, Ms. Kolosey refused to remove the student from Ms. West’s class. The parents of S.B. continued to request that their child be removed from Ms. West’s class because S.B. had skipped Ms. West’s class, and they felt it was a result of the child having been traumatized by Ms. West’s actions. Ms. Kolosey discussed the issues concerning S.B. She specifically told Ms. West not to bring the issues up to S.B. in a negative way but to attempt to mend her relationship with S.B. On March 12, 2002, Ms. Kolosey received a telephone call from S.B.’s mother again demanding that S.B. be removed from Ms. West’s class. Ms. West had told S.B. in front of S.B.’s classmates that S.B. could not run to Ms. Kolosey about things that were said in private because she was saying it in front of the whole class. Ms. West admitted to Ms. Kolosey that she had made the remarks to S.B. Ms. Kolosey agreed to remove S.B. from Ms. West’s class. On May 16, 2002, Ms. Kolosey; Ms. West; Ms. Andrews, the principal at Azalea Middle School; and Mr. McNeil, a union representative, had a conference to discuss more allegations that Ms. West had made belittling remarks to some of her students. It was suggested to Ms. West that if she needed to discuss a student’s performance or behavior that she take the student aside rather than do it in front of other students. Ms. West was warned that her attitude needed to change and that she could not always say the first thing that came to her mind. During the last semester of the 2001-2002 school year, Ms. West’s daughter was seriously ill, and Ms. West missed a great deal of work because of her parenting responsibilities. The first semester of the 2002-2003 school year, Ms. West was absent most of the time because of her daughter’s illness. Ms. West returned to teach at Azalea Middle School in January 2003. After Ms. West’s return, complaints began to be made to the administration about inappropriate comments that Ms. West was alleged to have made during class. Ms. West denied making the comments. Again, Ms. West was cautioned to think about what she says to the students before she says it. Ms. West was under a great deal of stress during the early part of the second semester of the 2002-2003 school year because of her daughter’s illness. Her daughter passed away in March 2003. In March 2003, Ms. West received a written reprimand from the principal at Azalea Middle School for “failing to interact appropriately with students and making inappropriate remarks to students, and for insubordination in failing to follow a previous directive to refrain from such remarks.” Again, Ms. West was directed to refrain from making inappropriate remarks to students. Ms. Kolosey evaluated Ms. West for the 2002-2003 school year. Ms. West was rated ineffective for her instructional and non-instructional performance. It was noted that Ms. West’s judgment was a serious concern and that the numerous complaints which had been received regarding Ms. West’s negative interactions with students overshadowed an otherwise knowledgeable and organized classroom presentation. Ms. West appealed the evaluation, but the evaluation was upheld. Ms. West felt that Ms. Kolosey was being unfair to her and that she was taking the word of students over Ms. West’s denials. Ms. West felt that because Ms. Kolosey believed the allegations of some of the students, the students somehow felt they were empowered and made even more accusations. In order to give Ms. West another fresh start, Ms. West was transferred to sixth-grade classes for the 2003- 2004 school year. Dan Stevens was assigned as her supervisor, and Ms. Kolosey had no further dealings with complaints regarding Ms. West. Because of the evaluation which Ms. West received at the end of the 2002-2003 school year, she was given a performance improvement plan on August 12, 2003. Among other things, the plan called for Ms. West to “[a]void use of inappropriate comments to students that they may find humiliating or demeaning in nature.” Ms. West was told to “[u]se wait time before responding to students[’] inappropriate behavior” and to “[r]emember to always praise student publicly and to correct them privately.” On August 25, 2003, Mr. Stevens received an email from the Azalea Middle School sixth-grade guidance counselor, advising him that there had been a complaint by a student that Ms. West had disclosed his grade in class without his permission and that the parent of another student, E.M., had called to complain that her daughter’s grade had been revealed to the other students. E.M.’s mother also wrote a letter to Mr. Stevens regarding her allegations that Ms. West was disclosing her daughter’s grades to the class. Because E.M.’s mother felt that Ms. West was acting inappropriately, she refused to allow E.M. to attend Ms. West’s class. On October 7, 2003, a conference was held with Ms. West to discuss the allegations made by E.M.’s mother. Ms. West denied disclosing E.M.’s grade. E.M. was transferred from Ms. West’s class to another class. In late August 2005, J.T., a sixth-grader at Azalea Middle School, was transferred to Ms. West’s health class. On September 2, 2005, J.T. called his stepmother during class and handed the telephone to Ms. West so that she could talk to his stepmother. Ms. West discussed with the stepmother that J.T. had failed a test and that he had not returned the test to her with a signature of one of his parents. This conversation was held during class time and in a manner that the other students could hear Ms. West. Ms. West called L.D. about her son, T.D., during class hours to complain that T.D. was making a failing grade. L.D. could hear students in the background. Ms. West made remarks to students which were disparaging and embarrassing. One remark made by Ms. West to T.J. was, “You must have studied in the dark.” Ms. West had been talking to T.J. about his low grade on a test. T.J. said that he had studied for the test, and Ms. West responded that he must have studied in the dark. Ms. West has also made this comment to other students who had made low grades on tests. Ms. West also told T.J. in front of other classmates to “Take your grow-up pill.” T.J. is small in stature and sensitive about his size. Ms. West denied that she was making a reference to his small size and contends that she was just trying to tell him that he was acting immaturely. Although Ms. West did not intend to make fun of T.J.’s small size, she should have known that such comments could embarrass him. Ms. West made the comment, “Dumb boys make dumb babies” during her health class in the fall of 2005. She contends that she was trying to make the students aware that they should think about the consequences of the decisions that they make in life. Although Ms. West was trying to convey an appropriate message, she chose an inappropriate means to do so. At the final hearing, Ms. West stated that she had made the remark to two girls, who were discussing a particular student. In essence, she referred to the young man as being dumb, which was not appropriate. Based on the numerous complaints that the administration received about Ms. West’s behavior, the Pinellas County School Board made investigations and terminated Ms. West’s employment with the Pinellas County School Board. Both administrators and parents found that Ms. West was an ineffective teacher. Based on the numerous complaints from parents and the necessity to transfer students from Ms. West’s classes to other classes, Ms. West was an ineffective teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Ms. West guilty of violating Subsections 1012.795(1)(f), 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i) and suspending Ms. West’s educator’s certificate for three years, followed by a two-year probationary period under terms and conditions set by the Education Practices Commission. DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2009.
