The Issue The issues to be determined are whether Respondent, Mr. William Doran, violated sections 1012.795(1)(g) or (j), Florida Statutes (2012),1/ and implementing administrative rules, as alleged in the Administrative Complaint, and, if so, what is the appropriate sanction?
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Mr. Doran holds Florida Educator's Certificate 1013018, covering the areas of general science, social science, and exceptional student education, which is valid through June 30, 2019. At all times relevant to the complaint, Mr. Doran was employed as a teacher at Southport Middle School in the St. Lucie County School District. On or about May 3, 2013, Mr. Doran became involved in a verbal altercation with M.M., a 13-year-old male student. Student A.L. was present in the classroom on May 3, 2013. She made a video recording of a portion of the altercation between Mr. Doran and M.M. on her cell phone. Shortly after the altercation, school authorities took A.L.'s phone. Later, at hearing, A.L. viewed a video and credibly testified that it was the video recording that she had made. A.L. identified Mr. Doran and M.M. on the video. That video, offered into evidence, was the entire video that she recorded. It is clear under all of the circumstances that it fairly and accurately represented the portion of the altercation that A.L. videotaped. A.L. testified that she was aware that she violated a rule of the St. Lucie County School Board that did not allow her to use her cell phone in class. A.L. did not ask Mr. Doran if she could take the video. She testified that no one knew that she was videotaping the incident. There is no evidence that Mr. Doran, occupied with the confrontation with M.M., was aware that he was being recorded. However, Mr. Doran's recorded oral communications took place in a public school classroom, his place of employment. The statements were made publicly in the presence of many students other than M.M., the student he was addressing. Mr. Doran had no reasonable expectation that those comments would remain private between M.M. and himself. The altercation arose as a result of students playing a slap game in which they touch hands and strike each other until one suffers enough pain to let go. As Mr. Doran described in testimony under oath in an earlier proceeding, the incident began after Mr. Doran directed M.M. and another student to stop playing the game: Q: Did they? A: Yes. M.M. did. Although he then told me, "Well, I like playing this game because it makes me feel good, Mr. Doran." Q: What did you reply? A: I said, "I don't care how much you like it. I don't care if you like jumping off a bridge, you're not going to do it in this classroom." Q: Did Mr. M.M. respond? A: He then – he then responded, "Oh, you want me to jump off of a bridge." And I said, "No, that isn't what I said." * * * Well, M.M. continued to protest and I asked him to please quiet down and allow the class to continue its work and I did this a couple of times. He refused to do it and he finally said, "Get out of my face." As Mr. Doran described, he was four to five feet away from M.M. when M.M. said this, but he then moved closer to M.M. and asked M.M., "Well, what are you going to do about it?" M.M. then repeated "get out of my face" several times and began using obscenities in the classroom. During the course of the altercation with M.M., Mr. Doran called M.M. a coward. During the course of the altercation with M.M., Mr. Doran stood over M.M. and repeatedly told M.M. to "[g]o ahead and hit me." During the course of the altercation with M.M., Mr. Doran told M.M., "Come on big man--what you are going to do about it, hit me?" During the course of the altercation with M.M., Mr. Doran told M.M. to hit him because it would "make my day." It is clear that Mr. Doran's response to M.M.'s inappropriate attitude and language did not defuse the situation, and in fact had the potential to escalate it. Mr. Doran's behavior changed the nature of the incident from one of a student defying institutional authority into a personal, potentially physical, confrontation between M.M. and Mr. Doran as an individual. On or about March 7, 2014, Mr. Doran told his students that he was getting a new male student in the class, that it was more common for male students to be disabled (ESE), that the student's name indicated he was black, and that the student had a behavior plan. On or about November 5, 2014, Respondent resigned from his teaching position with the St. Lucie County School District. Prior History On November 9, 2010, Mr. Doran received a Summary of Conference from his principal, Ms. Lydia Martin, for making inappropriate comments to students. On May 2, 2011, Mr. Doran received a Letter of Concern from Ms. Martin for abusive or discourteous conduct toward students. On February 13, 2012, Mr. Doran received a Letter of Reprimand from Ms. Martin for violating a directive by discussing a matter under investigation and taking pictures of misbehaving students. On May 5, 2012, Mr. Doran received a Recommendation for Suspension from Ms. Martin for failing to comply with directives. Mr. Doran received satisfactory ratings in every category on his evaluation forms for school years 2006-2007 through 2010-2011 (the years admitted into evidence). He received a few Above Expectation ratings and only one Improvement Expected rating in 2006-2007 and gradually improved through 2009-2010, when he received a majority of Above Expectation ratings, with only a few Meets Expectation ratings. In 2010-2011, he received several Above Expectation ratings, a majority of Meets Expectation ratings, and one Improvement Expected rating.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Mr. William Doran, in violation of section 1012.795(1)(j), Florida Statutes, and implementing rules. It is further RECOMMENDED that the Education Practices Commission revoke his educator's certificate for a period of two years, at the expiration of which time he may receive a new certificate by meeting all certification requirements at the time of his application, subject to terms and conditions determined by the Education Practices Commission to be reasonably necessary to ensure that there will be no threat to students and that he will be capable of resuming the responsibilities of an educator. DONE AND ENTERED this 20th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 20th day of June, 2016.
Findings Of Fact Richard L. Gryte holds Florida Teacher's Certificate Number 323641, issued on January 4, 1983, covering the areas of elementary education, early childhood education, emotionally disturbed education and Junior College. Until his resignation on March 13, 1984, Gryte was employed by the Seminole County School Board as a teacher of emotionally handicapped students at the Milwee Middle School located in Longwood, Seminole County, Florida. Gryte was initially hired by Douglas Smith, assistant principal at Milwee, in the summer of 1981, to serve as an emotionally handicapped (herein referred to as EH) resource teacher. This was based on Gryte's prior work history, as well as his educational background; including a master's degree in exceptional education. As a resource teacher, Gryte did not have academic responsibilities, but was used as a counselor who would work with students for a period during the day. These students would be assigned to the resource room by their regular classroom teachers, primarily if they had problems regarding behavior. As a teacher involved with emotionally handicapped students, it was necessary for Gryte to prepare forms known as Individual Educational Plans (hereinafter referred to as IEP's). The IEP's were required by Federal and State law and were necessary in order for the school district to obtain funding. From the beginning of his employment and assignment at Milwee Middle School, Gryte had difficulty performing administrative duties regarding documentation and other paperwork. Gryte recognizes that correct documentation is the responsibility of a good teacher, but also acknowledges his weakness in that area. When this problem was brought to the attention of Douglas Smith, assistant principal, he immediately sent memos and spoke with Gryte regarding the problem. During the 1981-82 year, out of the 22 IEP's necessary for Gryte to complete, at least 12 were incomplete or not done. The IEP's that were done were incomplete in that they lacked objectives, goals and other qualitative methods by which to determine the progress of the child. Even as a resource teacher, Gryte failed to prepare lesson plans which were required of all teachers. In fact, Respondent failed to prepare lesson plans for the entire 1981-82 school term, despite being counseled and informed about the necessity of preparing and submitting lesson plans. Overall, Gryte's teaching performance for the 1981-82 school term was not in keeping with minimum standards required of his profession. In addition to the paperwork and other administrative tasks, Gryte had a problem maintaining classroom discipline and control and would violate school rules by leaving the class unattended. During the 1982-83 school term, Mr. Willie G. Holt became the principal at the school. He first became concerned regarding Gryte's performance because of safety concerns he had for student's in Gryte's resource class. Due to the nature of these children and their behavioral problems, it was a policy of the school that children would not be left alone and unattended. Gryte knew of this policy. During the 1982-83 school year, Gryte would periodically leave his class unattended. On two occasions in the spring of 1983, a female student was involved with and performed sexual acts including masturbation and oral sex in the presence of two male students. These acts occurred when Gryte left his class unattended. Gryte recognized that it was wrong to leave the class unattended, but felt he could trust the boys involved and was only gone for a brief period of time. Due to concern for the safety and welfare of the students entrusted to Gryte and because of a need to relieve the previous self-contained teacher, Mr. Holt, school principal, and Mr. Smith, assistant principal in charge of the exceptional education program, decided to place Gryte in the self-contained EH class for the 1983-84 school year. This was thought to be appropriate since the self-contained class had a full-time aide, Betty Manly, who would always be present in the event Gryte would leave the class unattended. Gryte objected to this assignment, but based on his certification and education, he was qualified to be in the self- contained classroom and he was so assigned. Gryte's teaching performance in the self-contained classroom during the 1983-1984 school term was extremely unsatisfactory in all aspects. As in previous years, Gryte was required to submit weekly lesson plans. This was a requirement of all teachers. As in prior years, Gryte was derelict in preparing his lesson plans. From the beginning of the school term until January, 1984, he submitted lesson plans for the first five weeks, but failed to submit any lesson plans thereafter. He next submitted lesson plans for two weeks during the weeks of January 20 and 27, 1984. Thereafter, he did not submit any additional lesson plans until the date of his resignation in March, 1984. The assistant principals, Gordon Hathaway and Douglas Smith, repeatedly instructed Gryte to submit lesson plans timely, but he failed to do so. Even the lesson plans which were submitted were not proper in that they were too generalized and did not serve the proper function. In addition, for the 1983-84 school term, Gryte still had problems completing his IEP's timely and in a proper manner. It was a concern of the school officials that if they were ever audited, they would lose funding. Gryte was counseled by Dr. Daniel Scinto and Dr. Robert Carlton regarding the preparation of IEP's, as well as class management, but little improvement occurred. Gryte's classroom was extremely noisy, unruly and out of control. Dr. Carlton worked with Gryte on several occasions regarding implementation of behavioral management techniques. However, no improvement was noted. The excessive noise from Gryte's classroom was disturbing to the adjoining classes. Mr. Holt started receiving complaints from other teachers. Mrs. Poole indicated that students in her classroom actually complained about the noise from Respondent's class, as did she. The teacher's aide, Betty Manly, observed that Gryte did not assert control. He allowed the students to do as they pleased and demonstrated an apparent lack of classroom control. Gryte himself recognized that there was an excessive amount of noise in his class which was disturbing to other teachers. Some of the noise was due to Gryte's policy of allowing students to use curse words and engage in verbal altercations, which at times led to physical violence. He would permit the students to use "damn", "hell", and other similar curse words. On occasion, fights would break out among the students because Gryte would allow an argument to become too heated and would not assert control. He thought it was necessary for the children to have the freedom to release their anger in this manner. He ultimately hoped to be able to work with the students and this was part of his counseling therapy. Gryte often imposed corporal punishment as a means of discipline with the students. However, he frequently imposed the punishment in violation of State law and School Board policy. The School Board policy, as set forth in the student disciplinary code, requires that all corporal punishment be administered in the presence of another adult and not administered in the presence of other students. On numerous occasions, Gryte paddled a student in the classroom without the presence of another teacher or administrator as a witness and also while in the presence of other students. This practice was against direct orders of the principal. In addition, students were embarrassed by punishment being administered in front of other children. Further, the practice is not appropriate when dealing with any student, but even less so when dealing with emotionally handicapped students. On one occasion, Gryte lined the entire class up for "licks." The noise of the paddling and the student's yelling brought an adjoining teacher to see what had occurred. When she arrived, a student was lying on the floor and his leg was shaking and the student was grimacing and in pain. The teacher advised Gryte not to administer any more punishment, because it was in violation of the school policy. During the first nine weeks of the 1983-84 school year, Gryte failed to provide grades for the students in his class. He was unable to give grades because students had not performed a sufficient amount of work in order for Gryte to evaluate their progress and to assign a competent grade. This was in violation of the school policy as well as the State law, and was upsetting to the administration. The school was required to send blank report cards, with the exception of P.E. grades. Gryte was told to produce his grade book and test papers which had been performed by the students. A review of the grade book showed tests and work had not been required or performed or recorded in order to evaluate the students. What papers were produced by Gryte were not of sufficient quality or quantity to effectively grade the students. The policy of the school was to assign enough work each week to allow the students to receive periodic grades. Gryte recognizes his duty to maintain paperwork and other documentation. He understands this is part of being a competent and effective teacher, even though he would place greater emphasis on the students. Jeanette Burgess was a female student in Gryte's self- contained classroom his last year at Milwee. Gryte had a propensity to touch Jeanette in an inappropriate and unprofessional manner. He would periodically touch her on her face, ears and buttocks. This was embarrassing to Jeanette. On one evening, Gryte called Jeanette's home to speak with her. Her mother, Diana Oliver, answered the phone and inquired as to the nature of the call. Gryte indicated it was a private matter and he needed to speak with Jeanette personally. This offended the mother and she refused to allow him to speak with her daughter and advised him that any matters pertaining to Jeanette in school should be discussed with her. In addition, in the mother's opinion, Gryte had been drinking. She formed this opinion based on slurred speech and other mannerisms. On another occasion, Betty Manly entered the classroom and discovered Gryte standing extremely close to Jeanette and, in Ms. Manly's opinion, touching Jeanette inappropriately. Jeanette was forced back against Ms. Manly's desk and was obviously embarrassed by the situation. Gryte had dismissed the other students to attend P.E. class and was left in the room alone with Jeanette. The situation was upsetting to Jeanette, because she dropped her head and started crying when she was questioned about what had occurred between Gryte and her. Following the telephone incident, Gryte, the principal, and Jeanette's mother had a conference and Gryte was directed not to administer corporal punishment or otherwise touch Jeanette for any reason. Gryte violated this direct order in that he did subsequently administer corporal punishment to Jeanette. Another student in Gryte's self-contained class was a child by the name of Kelly Owens who had self-destructive tendencies and frequently would injure herself. On one occasion, Gryte sent her to the office alone and on the way, she took a piece of glass and cut her wrist and neck, not severely enough to cause death, but enough to result in extensive bleeding. Gryte had been specifically advised not to leave this child unattended. On one occasion, he gave her a pass to leave the school and go to an area known as the "swamp". This is an area off campus where students gather to smoke marijuana and allegedly participate in other similar activities. This occurred after a conference with the child's parents which Gryte attended and in which it was emphasized that the child needed close supervision. On another occasion, Gryte actually left the child in the classroom asleep. This was at the end of the school day. Another teacher came by and found the child sleeping in the class by herself. Gryte indicated he was unaware that Kelly was still in the classroom. In addition to the incident involving the telephone conversation with Jeanette Burgess' mother, Gryte appeared at an open house held on the school campus in the beginning of the 1983-84 school term. It was apparent that Gryte had been drinking. Those teachers present were definitely under the·impression that he had been drinking too much due to his slurred speech and demeanor. When confronted by Mr. Holt, Gryte admitted he had been drinking, but stated he only had one drink prior to the meeting. Based on Gryte's conduct and performance at Milwee, the principal and assistant principal felt he was neither effective nor competent and would not employ Respondent in a teaching position. Respondent recognizes he is not qualified and competent to teach certain areas of his certification. He basically desires to be a counselor and not a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order revoking the teaching certificate of Richard L. Gryte for a period of three years, subject to reinstatement thereafter pursuant to Section 231.28(4)(b), Florida Statutes. DONE and ORDERED this 11th day of April, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986. COPIES FURNISHED: L.Haldane Taylor, Esquire 331 East Union Street Jacksonville, Florida 32202 Richard L. Gryte 7703 Meadowglen Drive Orlando, Florida 32810 Karen B. Wilde Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 Ms. Marlene Greenfield, Administrator Professional Practice Service 319 West Madison Street, Room 3 Tallahassee, Florida 32301 APPENDIX The following constitutes any specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Petitioner's Proposed Findings of Fact 1-31 are all adopted in substance. Rulings on Proposed Findings of Fact of Respondent Respondent filed no Proposed Findings of Fact.
The Issue The issues to be determined are whether Eric Delucia (Respondent or Mr. Delucia) violated sections 1012.795(1)(c), (g), or (j), Florida Statutes, and implementing administrative rules, as alleged in the Amended Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is the state agent responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. At all times relevant to the allegations in the Amended Administrative Complaint, Mr. Delucia held Florida Educator's Certificate 915677, covering the areas of English, English for Speakers of Other Languages, Business Education, and Marketing, which is valid through June 30, 2019. At all times relevant to the Amended Administrative Complaint, Mr. Delucia was employed as a language arts teacher in the Broward County School District. Mr. Delucia stored the documents listed in Petitioner's Exhibit P-2 on his computer, as stipulated by the parties. Mr. Delucia was employed at Cooper City High School during the 2011/2012 school year. Ms. Doll was the principal. Principal Doll testified that Mr. Delucia was in the initial stages of a cycle of assistance during that year. He received a memo outlining expectations and concerns, and was observed by several people. Principal Doll indicated she believed that he had deficiencies in instructional planning, classroom management, lesson plan presentation, and lesson plan delivery. However, Principal Doll confirmed that Mr. Delucia's Instructional Practice Score was a 2.954 for the period January 2012 through May 2012 at Cooper City High School, which was within the "effective" range. Principal Doll stated that there were concerns about his performance based on observations that were done earlier that warranted an outside observer, but those observations were not used for the evaluation. He was never placed on a Professional Development Plan while at Cooper City High School. Respondent requested a hardship transfer and was moved to Ramblewood for the following school year. On January 1, 2013, Mr. Delucia was admitted to the hospital following a series of strokes. Respondent received "effective" scores in both the Student Growth and Instructional Practice components, as well as his overall Final Evaluation for the 2012/2013 school year at Ramblewood. Respondent was subsequently on medical leave of absence during the 2013/2014 school year. On July 1, 2014, Ms. Smith became the principal at Ramblewood. On August 11, 2014, Mr. Delucia returned to Ramblewood from medical leave. On August 14, 2014, Principal Smith was inspecting all of the classrooms at Ramblewood to ensure that they were prepared for the first day of school. She felt that Mr. Delucia's classroom was not ready for students, because it needed a little bit of "warmth." On August 28, 2014, Principal Smith conducted a formal evaluation in Mr. Delucia's classroom. She concluded that the lesson had no clear focus and that it was not on the appropriate grade level for the students he was teaching. In early September, there was a complaint that Mr. Delucia was putting up students' grades on a board in his room. However, Mr. Delucia testified that he posted the grades only by student number, not by name. There was no competent evidence to the contrary. On October 30, 2014, in introducing the genre of mythology to his students, Mr. Delucia made the comment that "[t]he gods viewed humans as pets or sexual toys." While not an appropriate comment for middle school students, there was no suggestion that Mr. Delucia elaborated or pursued this statement further, and this incident did not constitute ineffective teaching. There was no evidence that it caused students embarrassment or harmed students' mental health. There was testimony that on October 30, 2014, Mr. Delucia also spent class time explaining that the fact that a Star Wars' character had no father would have been taboo in 1976 and discussing that the episodes of that movie series were released out of the chronological order of the story. While the discussion may have gotten a bit off track, it was not clearly shown that discussion of fiction was unrelated to the concept of mythology, might not have enhanced students' understanding of the topic, or was ineffective teaching. While it was clearly shown that Mr. Delucia made the statement, "These kids have the memories of gnats," it was clear that this was said when no students were present and in defense of his actions in discussing fantasy and fables. On December 2, 2014, Respondent said to a student in an angry and loud voice, "Don't you even piss me off." This warning, given in response to the student's statement that the student did not understand something, was inappropriate in language and tone, harmful to learning, and harmful to the student's mental health. Mr. Delucia's statement that he was not visibly angry or speaking in a loud voice on this occasion is not credited. On December 8, 2014, Mr. Delucia met with Ms. Poindexter, his new peer reviewer. At one point in their conversation, he talked about his former principal, Ms. Doll, referring to her battle with cancer. He stated, "She will kick the bucket soon because she has cancer and no one will care when she is gone." He stated, "She's the devil." Mr. Delucia also referred to his current principal, Ms. Smith, as "the devil." He stated, "My motivation is to destroy her with everything I have" and that he "wished the ground would open up and swallow her." Mr. Delucia also referred to the administrative staff as "assholes" and used multiple profanities, stating, "They do not know who they are messing with, but they will find out soon." Student A.F. testified that he heard Mr. Delucia tell Student C.D. that he should jump off of a bridge with a bungee cord wrapped around his neck; tell Student C.D. that if he was a speed bump, he (Mr. Delucia) would run over him; and tell Student C.D. to kill himself a couple of times. However, Student A.F. provided no detail or context for these alleged statements, some of which seemed to involve an incident involving an entirely different student who he testified was not even in his class. He was not a credible witness. On January 8, 2015, Ms. Sheffield observed Mr. Delucia using a four-page packet to teach punctuation to his seventh- grade language arts class. Ms. Sheffield told Mr. Delucia that this was not really part of the seventh-grade curriculum. Mr. Delucia made a statement to the effect of "these students don't know anything, not even the basics, so we have to start somewhere." There was no allegation that this comment was made in front of the students. From the period August 21, 2014, through December 3, 2014, Mr. Delucia's Instructional Practice Score was 1.916, and he was placed on a 90-day Professional Development Plan. Numerous observations by Dr. Jones and Principal Smith followed through the remainder of the school year. Mr. Delucia's Instructional Practice Score improved slightly, but was still less than effective. On January 12, 2015, Ms. Sheffield noticed that one of the vocabulary words written on Mr. Delucia's board for his students was "retard." Ms. Sheffield said she assumed that Mr. Delucia meant the slang term sometimes used as a noun to refer to persons with mental disabilities. Such use of the term, as a shortened form of the word "retarded," would be offensive and disparaging. Ms. Sheffield said that they talked about the fact that it is not appropriate to use the word "retard" as a noun as a reference to the disabled. She testified that he did not respond. At hearing, Mr. Delucia admitted using "retard" as a vocabulary word, but testified that he included the word as a verb, meaning to slow down or delay. Ms. Sheffield testified she did not hear him speak the term, or say anything about it, and there was no other testimony regarding this event. Mr. Delucia admitted that he often said, "If your writing looks like garbage and smells like garbage, then it is garbage." Ms. Sheffield stated that she told Mr. Delucia he might try to find another way to encourage students to write neatly in their journals that was a more positive comment or allowed students to take pride in their writing. On January 26, 2015, Ms. Sheffield testified that when a student returned late from lunch, Mr. Delucia and the student began arguing. Ms. Sheffield credibly testified that Mr. Delucia screamed at the student, "This isn't going to end up good for you. Just shut up." On February 4, 2015, Student A.W. had come in late to Mr. Delucia's class and was acting out in the back of the classroom. When asked why, her response was that other people also did it. Mr. Delucia responded, "If other people jump off of a bridge, would you jump off a bridge, too?" Student A.W., after a moment of silence, retorted, "Yeah, if you give me a bungee cord." Mr. Delucia replied, "If there is a bungee cord, you should wrap it around your neck before you jump." The class started laughing. Student A.W. replied, "You just told me to kill myself, I am telling the office." Mr. Delucia then asked Student A.W. to leave the classroom. While Student A.W. had a disrespectful attitude, Respondent's caustic comments to her were intentionally made in a spirit of mocking humor to subject Student A.W. to embarrassment in front of the class. A class grade graph prepared during the third quarter of the 2014/2015 school year documented that 68 percent of his students were failing at that time. No similar graph for any other quarter of that year, or for other years, was submitted in evidence. On April 7, 2015, the students in Mr. Delucia's class were supposed to be studying Latin and Greek roots of words, but one student did not have a packet and asked Mr. Delucia for one. After Mr. Delucia handed him the packet, the student said, "There is a footprint on this." Mr. Delucia responded, "Get working on studying or else I will call your father." The student replied, "Please don't." Mr. Delucia then said, "Why, because you don't want to get a footprint on your face?" Ms. Sheffield testified that during her observations, she never saw Mr. Delucia standing up interacting with his students. She said she never saw him deliver a lesson to students. For the 2014/2015 school year, Mr. Delucia's score for the instructional practice component on his evaluation was 2.002, a "needs improvement" rating, while his score for both the deliberate practice/growth plans and student data components was recorded as exactly 3.0. The final evaluation for Mr. Delucia in 2014/2015, computed by combining these unequally weighted scores, was 2.511, an "effective" rating.1/ Mr. Delucia was transferred to Piper High School for the 2015/2016 school year. The administration there did not place Mr. Delucia on a Professional Development Plan. Mr. Delucia has not been subjected to disciplinary action during his time at Piper High School, and he has exhibited positive rapport with his students and colleagues. Mr. Delucia's weighted overall evaluation score for the 2015/2016 school year at Piper High School was 2.831, "effective." Mr. Delucia's demeanor at hearing was defiant. His testimony was sometimes evasive and defensive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Eric Delucia in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), (3)(e), and (5)(e); imposing a fine of $3,000.00; placing him on probation under conditions specified by the Commission for a period of two years; and imposing costs of investigation and prosecution. DONE AND ENTERED this 20th day of November, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 20th day of November, 2017.
The Issue Whether Respondent violated the Florida Statutes and Florida Administrative Code rules, as charged in the Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator's certificate and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator's Certificate No. 803275, valid through June 30, 2021, covering the areas of elementary education, exceptional student education, middle grades integrated curriculum, and social science. At the time of the final hearing in this proceeding, Respondent had taught for approximately 17 years. The Complaint The Complaint alleges that Respondent spoke ill of student E.J.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, E.J. was embarrassed. Additionally, the Complaint alleges that Respondent spoke ill of student A.S.'s work on an assignment in front of the whole class, including, but not limited to, calling it pathetic. As a result, A.S. was embarrassed. The Complaint also alleges that Respondent criticized student J.P.'s work on an assignment, including, but not limited to, saying he had not put any work into it. As a result of this alleged conduct, the Complaint charges Respondent with having violated section 1012.795(1)(j), and rules 6A-10.081(2)(a)1. and 6A-10.081(2)(a)5. Evidence Adduced at the Final Hearing Respondent began teaching in the St. Lucie County School District ("District") on August 1, 2016. At the time of Respondent's conduct that is alleged to violate section 1012.795 and rule 6A-10.081, Respondent was employed as an eighth grade social studies teacher at West Gate K-8 School ("West Gate"), in the District. The 2018-2019 school year for the District began on August 13, 2018. September 14, 2018, was Respondent's last day of employment with the District. The alleged conduct giving rise to this proceeding occurred at some point between August 13, 2018, and September 14, 2018. On or about September 14, 2018, the District initiated an investigation into Respondent's conduct while she had been employed at West Gate. E.J. was a student in Respondent's eighth grade history class. Respondent assigned the students to complete a history project. After E.J. turned in his project, Respondent called him up to her desk and told him, in the front of the class, that his work on the project was "lazy" and "pathetic." Other students in the class saw Respondent's conduct and heard her comments to E.J. E.J. testified, credibly and persuasively, that he was embarrassed and hurt by Respondent's comments, and that he went back to his desk in tears. The credible evidence establishes that after seeing E.J.'s reaction to her comments, Respondent called E.J. outside of the classroom and apologized. Respondent testified, credibly, that she felt "terrible" about making E.J. cry, and that she had made the comments because she was frustrated with the quality of the students' work on the project. E.J.'s father, Jermaine Jones, who had picked him up from school on the day of the incident, confirmed that E.J. was upset by Respondent's comments on his project. Jones immediately set up a meeting with Assistant Principal Guzman and Respondent for the following day. At that meeting, Respondent apologized to E.J.'s parents and said she was having a stressful day when she made the comments to E.J. According to Jones, the incident made E.J.—who normally is quiet— further withdrawn, and he became, in Jones's words, "a little depressed." According to Jones, following the incident, E.J. did not want to go to Respondent's class. Other student witnesses testified at the final hearing, credibly and consistently, that they saw and heard Respondent's comments directed at E.J., and that E.J. was upset by her comments and started to cry. Another student, J.P., testified that he had been unable to complete the project for Respondent's class because his grandfather was ill and had been hospitalized, and that he and his family had been spending time at the hospital. J.P. took a note from his mother, to Respondent, on the day the project was due, explaining the reason why J.P. had been unable to complete his project. J.P. testified, credibly, that Respondent told him, in front of the class, that she really did not care about the note, and if he did not turn in the completed project by the following day, he would receive a grade of "zero." J.P. credibly testified that other students in the class heard Respondent's comments to him, and that he was "very shocked" and felt "very embarrassed." J.P. did not turn in a project. Student A.S. testified, credibly, that Respondent told him that his work on the project was unacceptable and "pathetic." Respondent made these comments in front of the entire class. A.S. testified, credibly, that he felt "very embarrassed and upset." He testified, credibly, that Respondent did not apologize to him. Respondent testified on her own behalf. She acknowledged calling E.J.'s work "lazy" and "pathetic," but testified that she had not intended to hurt his feelings, and when she realized that she had, she "felt terrible about it." She acknowledged that she has "a deep voice, and I come off harsher than I mean to." She called E.J. outside to explain that she had not intended to hurt his feelings, and there would be other opportunities to make up the bad grade he received on the project. She testified that as a result of their talk, E.J. calmed down, and that she did not have any further issues with him in class. She confirmed that on the day following the incident with E.J., she met with E.J.'s parents to discuss the incident. She testified that the meeting was "civil," and that she left the meeting feeling like "it was taken care of." Regarding the incident with J.P., Respondent testified that the students had two weeks in which to complete the project, and that when J.P. approached her with the note regarding his grandfather's illness, she told him to turn in, the following day, what he had completed to that point. She confirmed that J.P. did not turn in a project. She also testified that she did not hear from J.P.'s mother regarding the project. Regarding student A.S., Respondent testified that she did not call his work "pathetic," and that, given E.J.'s reaction, she would not have used that word again.4 Respondent also presented the testimony of K.K., who also had been a 4 Respondent acknowledged that the alleged incidents with E.J., J.P., and A.S. involved the same project, and that E.J. and A.S. had turned the project in on the same day. Thus, the undersigned questions whether Respondent would have had sufficient time to reflect on the effect that the word "pathetic" had on E.J., such that she would not have used that word in speaking with A.S. on the same day. student in Respondent's eighth grade history class in the 2018-2019 school year. K.K. testified that Respondent discussed E.J.'s paper with the class because it was a good paper, and that she did not see anyone cry in Respondent's class. She also testified that Respondent did not speak in negative terms about anyone's project in front of the class. However, K.K.'s testimony and written statement are directly contradicted by the testimony of four other students, as well as by E.J.'s father and Respondent herself, who admitted having called E.J.'s work on the project "lazy" and "pathetic" in front of the class. Accordingly, K.K.'s testimony and statement are not deemed credible. Respondent has been a teacher for 17 years. She testified that her educator's certificate has never been subjected to discipline, and no evidence was presented showing that disciplinary action has ever been taken against her educator's certificate. Findings of Ultimate Fact Based on the foregoing, it is determined that Petitioner proved, by clear and convincing evidence, that Respondent engaged in the conduct alleged in the Complaint. Whether particular conduct constitutes a violation of the applicable statutes and rules is a factual question to be decided in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Whether specific conduct constitutes a deviation from the required standard is an ultimate finding of fact. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). Rule 6A-10.081(2)(a)1., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to make reasonable effort to protect a student from conditions harmful to learning and to the student's mental health. It is determined that by disparaging E.J.'s work in front of the entire class—which caused him to suffer distress, withdraw, and avoid going to Respondent's class—Respondent violated this rule. Rule 6A-10.081(2)(a)5., of the Principles of Professional Conduct for the Education Profession in Florida, requires a teacher to avoid intentionally exposing a student to unnecessary embarrassment or disparagement. As found above, Respondent intentionally engaged in conduct that resulted in unnecessary embarrassment to students E.J., J.P., and A.S. Accordingly, it is determined that Respondent violated this rule. By violating the Principles of Professional Conduct for the Education Profession in Florida, Respondent violated section 1012.795(1)(j).
Conclusions For Petitioner: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 For Respondent: Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC 1200 Corporate Way, Suite 200 Wellington, Florida 33414-8594 1 All references to chapter 120 are to the 2020 version.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order placing Respondent's educator's certificate on probation for a period of one year from the date of the Final Order. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 23rd day of June, 2021. COPIES FURNISHED: Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Diane Tirado 3502 Southwest Vollmer Street Port St. Lucie, Florida 34953 Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Lisa Forbess, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner, Monroe County School Board, has “just cause” to terminate the employment of Respondent, Maryeugene E. Dupper, as a teacher for Petitioner.
Findings Of Fact The Parties. Petitioner, Monroe County School Board (hereinafter referred to as the “School Board”), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Monroe County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Respondent, Maryeugene E. Dupper, has been a classroom teacher with the School Board since August 2000. She began her employment as a substitute teacher and was subsequently employed as a full-time teacher at Poinciana Elementary School (hereinafter referred to as “Poinciana”), where she worked with profoundly handicapped students. She remained at Poinciana through November 2006. Throughout her employment at Poinciana, Ms. Dupper received good performance evaluations, although they did decline over time. On November 17, 2006, Ms. Dupper transferred to Gerald Adams Elementary School (hereinafter referred to as “Gerald Adams”), where she taught a Pre-K Exceptional Student Education or ESE class for the first time. At the times pertinent to this proceeding, Ms. Dupper was employed as a teacher pursuant to a professional services contract. 2006-2007 School Year. From the beginning of her employment at Gerald Adams, Ms. Dupper evidenced difficulty implementing the curriculum in a meaningful way. In particular, Ann Herrin, Principal at Gerald Adams, whose testimony has been credited, found that Ms. Dupper was having a difficult time establishing the scope and sequence of lessons and effective classroom management techniques. Among the deficiencies Ms. Herrin found with Ms. Dupper’s performance was the lack of progress notes for her students. Ms. Dupper failed to keep any notes indicating that she had performed any formal evaluation of her students. When Ms. Herrin asked Ms. Dupper how she could tell whether her curriculum was successfully reaching each student, Ms. Dupper simply replied that “I am a teacher and I just know.” After conducting two formal observations and a number of informal observations of Ms. Dupper, Ms. Herrin, in her 2006- 2007 annual teacher evaluation concluded that Ms. Dupper “Needs Improvement” in Management of Student Conduct, Instruction Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Herring used a Teacher Annual Assessment Plan Comprehensive Assessment Form for this evaluation. Overall, Ms. Herrin rated Ms. Dupper as “Needs Improvement” noting that “Curriculum content is lacking – making the learning environment unacceptable and unmanageable.” Subsequent to Ms. Herrin’s evaluation of Ms. Dupper, Ms. Herrin issued a Professional Development Plan for Ms. Dupper dated May 30, 2007. Ms. Dupper, who had been provided assistance throughout the school year by Gerald Adams administrative staff, was offered guidance in the Professional Development Plan intended to improve her performance as a teacher. That guidance is accurately described in paragraph 9 of the School Board’s Proposed Recommended Order. At the beginning of the 2007-2008 school year, the School Board instituted a new curriculum for use by Pre-K teachers. That curriculum, the Galileo Curriculum (hereinafter referred to as “Galileo”), is a computer-based program which includes lessons plans and benchmarks and goals for teachers to use in assessing student performance. Although Galileo includes a means for teachers to keep track of student progress, Galileo is not a student evaluation instrument intended for use in “testing” student progress. 2007-2008 School Year. During the 2007-2008 school year, Ms. Dupper was observed on October 11, November 8, and December 18, 2007, and on March 20 and 26, and May 6 and 22, 2008. Despite efforts to provide Ms. Dupper with professional assistance and making several changes in the teacher’s aide assigned to assist her, Ms. Dupper’s performance remained inadequate. Ms. Dupper was provided with assistance by teachers at Gerald Adams, including a “mentor," and by the head of the Exceptional Student Education department and an Exceptional Student Education Program Specialist. Ms. Dupper was observed on one occasion by Ms. Herrin when every student in Ms. Dupper’s “learning center” left the area while she continued to “teach.” One student stood on a table dancing, uncorrected by Ms. Dupper. On two occasions, a student left Ms. Dupper’s classroom altogether and were taken back to Ms. Dupper’s classroom before she realized they were gone. On nine different occasions during the 2007-2008 school year, Ms. Herrin requested a discipline plan from Ms. Dupper. No plan was ever provided. Ms. Dupper’s use of Galileo was minimal during the 2007-2008 school year. The system contained a checklist, by domain or skill, which was intended for use by a teacher in determining whether each student was learning the listed skills. Ms. Dupper rarely used the system, however, only logging into the Galileo system 19 times. Nine of those times were on the same day and four were on another day. Other Pre-K teachers utilized Galileo an average of 100 times more than Ms. Dupper. Ms. Herrin’s 2007-2008 annual evaluation of Ms. Dupper, dated April 4, 2008, found that her performance had declined and was “Unsatisfactory.” Ms. Herrin found Ms. Dupper “Unsatisfactory” in Management of Student conduct, Instruction, Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Dupper’s performance in Professional Responsibilities also declined due to her failure to complete Individual Education Plans on time, incomplete and inaccurate progress notes, and her failure to follow suggestions for improvement. The 90-Day Probation Period. As a result of her continuing decline in performance, Ms. Dupper was informed on April 9, 2008, that she was being placed on a 90-day probation period pursuant to Section 1012.34, Florida Statutes. She was informed that her deficiencies included the inability to manage student conduct, lack of lesson planning, inadequate knowledge of subject matter, lack of student progress evaluation, and inadequate professional responsibility. Ms. Dupper was given suggestions for how to improve her deficiencies over the summer break, suggestions which Ms. Dupper did not follow. While on probation, Ms. Dupper was also offered an opportunity to transfer to another school, an offer which was not accepted. On June 6, 2008, at the request of Ms. Dupper’s union representative, a second annual evaluation was performed by Ms. Herrin. While Ms. Herrin found some improvement, she found that, overall, Ms. Dupper’s performance was “Unsatisfactory.” Ms. Dupper was on probation during the 2007-2008 school year a total of 62 days, excluding holidays and “professional days.” During the summer months between the 2007-2008 and 2008-2009 school years, Ms. Dupper, who was not teaching, failed to follow any of Ms. Herrin’s suggestions for personal improvement opportunities. The first day of school for the 2008-2009 school year and the commencement of the 90-day probation period was August 11, 2008. Ms. Herring formally observed Ms. Dupper during the third week of September 2008, and on October 2, 2008. Assistant Principal Willis observed Ms. Dupper on October 8, 2008. Ms. Dupper’s performance and use of Galileo continued to be unsatisfactory, despite continuing efforts of the administration staff to assist her, as more particularly and accurately described in paragraphs 30 through and including 35 of Petitioner’s Proposed Recommended Order. Additionally, Ms. Dupper continued to fail to prevent her very young students from leaving the classroom without her knowledge. Excluding non-school days, Ms. Dupper was given more than 120 days from the commencement of her probation period until her probation period was considered ended in October 2008. By the middle of October 2008, Ms. Herrin concluded that Ms. Dupper had not evidenced satisfactory improvement in her teaching skills. Ms. Herrin’s conclusions concerning Ms. Dupper’s unsatisfactory performance as a teacher, which were not contradicted, are credited. The Decision to Terminate Ms. Dupper’s Employment By letter dated October 30, 2008, Ms. Herrin recommended to Randy Acevedo, Superintendent of the Monroe County School District, that Mr. Acevedo review documentation concerning Ms. Dupper’s 90-day probation period and make a recommendation pursuant to Section 1012.33, Florida Statutes, concerning her continued employment. Ms. Herrin provided Mr. Acevedo with the following information for his review: Attached please find a copy of the professional development plan and this year’s observations conducted by Assistant Principal, Grace Willis and me. The remaining documentation for the 2007 and 2008 school years have been submitted to personnel. I have also attached the follow up documentation, the review of the 90-Day plan and the observations that outline the deficiencies that still remain. This teacher’s performance remains unsatisfactory. Petitioner’s Exhibit 7. Missing from the information provided for Mr. Acevedo’s consideration was any information concerning student performance assessed annually by state or local assessment. By letter dated November 14, 2008, Mr. Acevedo informed Ms. Dupper that he was going to recommend to the School Board at its December 16, 2008, meeting that her employment as a teacher be terminated. By letter dated November 18, 2008, Ms. Dupper requested an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge her anticipated termination of employment. The School Board accepted the Superintendent’s recommendation at its December 16, 2008, meeting, suspending Ms. Dupper without pay, pending a final determination of whether her employment should be terminated. Student Performance Assessment. The Florida legislature has specified in Section 1008.22, Florida Statutes, a “Student assessment program for public schools.” This assessment program is to be considered in evaluating student performance as part of a teacher’s evaluation. The assessment program, however, does not apply to Pre-K students. “FLICKRS” is a state assessment tool intended for use in evaluating Kindergarten students. FLICKRS allows schools to evaluate whether a Kindergarten student is actually ready for Kindergarten-level work. FLICKRS is not utilized by the School Board to evaluate the progress of Pre-K students. The School Board has not developed any means of annually assessing the performance of Pre-K students. As a consequence, the decision to terminate Ms. Dupper’s employment by the School Board was not based upon any annual assessment of her students’ performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order: (a) dismissing the charges of the Administrative Complaint; (b) providing that Ms. Dupper be immediately reinstated to the position from which she was terminated; and (c) awarding Ms. Dupper back salary, plus benefits, to the extent benefits accrued during her suspension, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of July, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2009. COPIES FURNISHED: Scott Clinton Black, Esquire Vernis and Bowling of the Florida Keys, P.A. 81990 Overseas Highway, Third Floor Islamorada, Florida 33036 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Acevedo, Superintendent Monroe County School Board 241 Trumbo Road Key West, Florida 33040-6684 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is a seventh grade student at Howard D. McMillan Junior High School. He received failing grades in all his first semester courses and regularly fails to accomplish his homework assignments. He has an absentee rate (unexcused) approaching 50 percent and is frequently late to those classes he does attend. Petitioner has attempted various counseling and disciplinary techniques without success. Although there have been some communication problems between school officials and Respondent's parents, they were aware of his poor grades and frequent absences.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Ybrahim Gonzalez, Jr., to its opportunity school. DONE AND ENTERED this 19th day of June, 1984, at Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Mr. Ybrahim Gonzalez, Sr. 6624 Southwest 148 Place Miami, Florida 33138 Madelyn P. Schere, Esquire Assistant Board Attorney 1410 Northeast Second Avenue Miami, Florida 33132
The Issue Whether Petitioner has just cause to terminate Respondent's employment with Petitioner due to unsatisfactory performance in accordance with Subsection 1012.34(3) (d), Florida Statutes (2009) .*
Findings Of Fact 1. Petitioner is the duly-authorized entity responsible for providing public education in Manatee County, Florida. 2. Respondent is employed as a teacher by the Petitioner, pursuant to a professional services contract. At the beginning of the 2007-2008 school year, Respondent began working as a sixth-grade mathematics teacher at Buffalo Creek Middle School (Buffalo Creek). The principal of Buffalo Creek was Scott Cooper (Cooper). During the 2007-2008 school year, Janet Roland (Roland) was the assistant principal at Buffalo Creek. 3. In or around December 2007, Respondent met with Cooper to discuss a parent telephone call. Cooper received a complaint from a parent about the grade the parent’s child received in Respondent's class. During the meeting, Cooper asked Respondent to detail her grading system. Respondent informed Cooper that she used a point system and explained how the system was beneficial to the students in her class, most of whom were below grade level and did not test well. 4. During the meeting in December 2007, Cooper logged into Respondent’s Pinnacle account in her presence and changed the weighting of her grades in various ways to see how the change would affect the students’ grades. Respondent did not agree to weight her grades and continued to use a point system. 5. Later in December, Respondent noticed that some of her grades were changed. She did not tell anyone of the alterations, but merely changed the grades back to be accurate. However, Respondent noticed that her grades where changed a second time and contacted the Manatee County School District’s (District) grade book administrator, Don Taylor (Taylor), out of concern. Taylor looked into the matter and, eventually, referred it to the District’s Office of Professional Standards, which conducted an investigation. The result of the investigation, which concluded in or around July 2008, showed that Cooper logged into Respondent’s Pinnacle account, without her knowledge or consent, and altered many of her grades. 6. Cooper was responsible for counseling teachers regarding performance issues. He walked through Respondent’s class every two-to-four weeks, but did not discuss with Respondent any other alleged performance deficiencies during the 2007-2008 school year. 7. Cooper was found guilty of misconduct by the District and was given a letter of reprimand. Cooper was soon thereafter demoted to a teaching position. During the first week of school of the 2009-2010 school year, Cooper apologized to Respondent for altering her grades. 8. Prior to becoming employed at Buffalo Creek, Respondent taught language arts at Lincoln Middle School (Lincoln). During her tenure at Lincoln, Respondent received all positive evaluations and was not informed of any perceived deficiencies in her performance. 9. During the 2008-2009 school year, Petitioner adopted the Manatee Core Curriculum (MCC) as a standardized curriculum to be implemented in the District’s four core subjects: math, language arts, social studies, and science. The MCC aimed to promote a consistent curriculum among the schools within the District, many of whom serve a transient population. The MCC is composed of prescribed units of study intended to promote student achievement of specific educational benchmarks, which are established by the state and assessed through statewide FCAT testing. Each unit is prescribed a specific duration of study to ensure that all units are covered during the course of the academic calendar and to ensure that the students are provided an opportunity to learn the skills and information required for promotion to the next grade level. In addition to traditional assessments such as homework, quizzes, and tests, students are required to complete a Unit Performance Assessment (UPA) at the end of each unit to assess progress and understanding of the covered concepts. 10. Petitioner has also adopted a standardized grade book, called Pinnacle, which all teachers in the District are required to maintain. Pinnacle is a computerized grade book system, in which teachers are required to enter all grades, assignments, and assessments provided to the students during the school year. Pinnacle can be accessed by both parents and administrators and was adopted by Petitioner as a means of communicating students’ progress to parents by providing instant and up to date access to their students’ grading history throughout the various stages of the MCC. The main benefit of Pinnacle is that it provides both teachers and parents a tool for identifying, in a timely manner, those students who may be having difficulties achieving the benchmarks evaluated by the MCC. Teachers are required to enter all of the students’ assessments in a timely manner in order to maintain an accurate and up-to-date picture of the students’ progress. District policy does not require weighting, but does require that grades be input into Pinnacle. Petitioner’s expectation is that teachers enter grades within two weeks of a given assessment. Thus, Pinnacle became a source of communication between parents and teachers. 11. Unfortunately, very few of the parents of Petitioner’s teachers requested a username, and other identifiers, and, thus, did not have access to the tool. 12. During the 2008-2009 school year, Petitioner employed Respondent, under a professional services contract, as a sixth- grade mathematics teacher at Buffalo Creek. The principal of Buffalo Creek during the 2008-2009 school year continued to be Cooper, and the newly-appointed assistant principal was Sharon Scarbrough (Scarbrough). Scarbrough was assigned the responsibility of evaluating the performance of certain teachers, including Respondent. Respondent was included in Scarbrough’s responsibility in order to avoid the appearance of impropriety. 13. During the first quarter of the 2008-2009 school year, Scarbrough identified certain issues relating to Respondent's performance, including the inordinately high failure rate among students in Respondent’s class. Several parents requested the transfer of their students out of Respondent’s class due to concerns that the students were not learning. 14. In grading her students, Respondent assigned different point values to each type of student assessment. Tests and UPAs were worth 100 points each, quizzes were worth 50 points each, and homework was worth ten points. As a teacher, Respondent had discretion as to how many tests and quizzes to administer, as well as how much homework she assigned and what point value to assign each assessment. 15. UPAs are project-based assessments given at the end of each unit of the MCC. UPAs are required by the MCC. 16. Respondent generally assigned homework to her students two or three times a week. When the students returned to class, they would grade their own homework for accuracy, while Respondent went over the answers on an overhead (ELMO) projector. Respondent required that the students redo the problems that they got wrong on the homework while they were reviewing it. The students then passed the homework forward to Respondent, who would grade the homework for effort, and would eventually log the grades in Pinnacle. Only the students who completely failed to complete the assignment were given a zero. 17. In addition to Pinnacle, Respondent communicated with the parents of her students through an agenda (initialed daily by Respondent and parents), progress reports, grading their own homework, and grade reports sent home every couple of weeks for parents’ signature. 18. All teachers at Buffalo Creek are required to prepare and have available for inspection, on the Friday before the next week, weekly lesson plans. They are critical not only as an established agenda to assist the teacher in maintaining pace with the MCC, but also as a mechanism to assist the administration in identifying those teachers who are not maintaining the required pace. 19. Scarbrough noted that Respondent was not submitting lesson plans in a timely fashion. Scarbrough engaged Respondent in informal conversations concerning these issues on at least three occasions in the fall of 2008. Respondent admitted to turning in her lesson plans late on occasions, but explained that she was always prepared for class and that she kept more detailed plans in her own lesson plan book. 20. During this same time period, Petitioner’s mathematics curriculum specialist, Joseph McNaughton (McNaughton), noted that Respondent had fallen well behind the pace for instruction established by the MCC. The MCC prescribed ten units of curriculum to be covered in sixth-grade math classes at set times during the school year. By the end of the first quarter, Respondent had completed only one of the ten units and had fallen 25 to 30 days behind the instructional pace established by the MCC. Respondent explained that she was behind in the curriculum due to the fact that: (1) it was her second year teaching math, (2) it was the first year of the MCC, (3) the unit itself included many components, and (4) many of her students lacked the requisite basic skills to comprehend the lesson. 21. On October 28, 2008, Scarbrough held a formal conference with Respondent, identifying various concerns with Respondent’s performance and addressing her expectations for improvement. Scarbrough noted that Respondent submitted untimely lesson plans eight of the ten weeks and informed Respondent that she was expected to submit her lesson plans the Friday before the week’s lessons are taught. Scarbrough addressed the fact that Respondent only completed Unit 1 of the McC during the first quarter and that Respondent was well behind the required pace of instruction. McNaughton was asked to assist Respondent in getting caught up with the curriculum. Respondent expressed a concern to McNaughton that the students did not possess the requisite knowledge coming in from fifth grade to complete the unit. 22. Scarbrough noted various omissions and inconsistencies in Respondent’s Pinnacle grade book entries and informed Respondent of the expectation that her grade book be timely and accurately maintained. Respondent admitted to failing to input the grades of approximately 23 students who had recently transferred to her class. However, she explained that the failure to input the grades was due to the failure of the original teachers to give the grades to Respondent, despite her repeated requests for the information. 23. Scarbrough noted that 59 percent of Respondent’s students received a “D” or “F” for the first quarter, which Scarbrough characterized as “an excessively high number of students not being successful” in comparison with other sixth- grade classes. Many of the students receiving failing, or near failing, grades in Respondent’s class were successful in their other subjects. Respondent admitted that she occasionally failed to comply with the District’s policy requiring teachers to input grades within two weeks of the assessment, but she 10 generally adhered to the policy. Further, teachers often used an X or Z to represent grades not assigned a numeric value in their grade books. Respondent explained to Scarbrough that in certain reports, the X or Z did not print and appeared to be blank. 24. Scarbrough noted that Respondent had failed to enter a grade for Unit 1, which was a requirement of the MCC. Respondent administered the UPA Unit 1 during the last week of the first quarter and input the grades into Pinnacle. Scarbrough also informed Respondent that grading and record- keeping are essential to basic teacher skills. Respondent denied having 59 percent of her students receiving a “D” or “F” in her class. She explained that the grades were inaccurate, due, at least in part, to the lack of transfer grades from the other teachers. 25. As a result of these concerns, Scarbrough issued Respondent a formal notice of return to documentation, dated October 28, 2008. Documentation is a procedure utilized by Petitioner to allow administration to formally observe its professional service contract employees at a date and time determined by the employee and to draft performance evaluations. The purpose of observing Respondent was to identify the root cause of her performance issues, so that Scarbrough could assist Respondent to improve upon them. Respondent understood that she 11 was being placed on documentation due to the issues outlined in the letter, dated October 28, 2008, from Scarbrough. She began an attempt to remedy the perceived deficiencies immediately by working with two resource teachers. Respondent also amended her policy of not accepting late work from students in an effort to boost the students’ grades. She also put together a packet of work and sent it home with the students over winter break, conducted an academic “boot camp,” asked administration to meet with parents, and asked Scarbrough to send out an automated telephone message to parents to make them aware of the makeup work. In addition, Respondent input her grades into Pinnacle in a timely manner. 26. Petitioner also provided Respondent professional development coaching with Specialist Amy Booth (Booth), who was hired by Petitioner to assist instructional staff with various issues relating to grade book maintenance, organization, time management, and execution of daily lessons, and Peggy Wolfe (Wolfe), who was hired by the Manatee Education Association (MEA) for the same purpose. Upon Wolfe’s request, Scarbrough agreed to delay formal observation of Respondent, until March of 2009, to allow Booth and Wolfe additional time to assist Respondent in improving her performance issues before being formally observed. 12 27. Petitioner also provided Respondent the opportunity to work directly with McNaughton to develop strategies and techniques for maintaining the instructional pace required by the MCC. McNaughton assisted Respondent in making revisions to the MCC in an effort to cover all the instructional units before the end of the school year. 28. McNaughton intended to present a “model lesson” to Respondent's classes while Respondent observed. The model lesson would provide Respondent the opportunity to observe beneficial instructional techniques demonstrated by McNaughton, while providing McNaughton an opportunity to assess whether any nuances existed within the classroom, or among Respondent's students, that might reveal the cause of the issues related to the instructional pacing and lack of student achievement. 29. At the request of Respondent, however, the model lesson was cancelled. Instead, Respondent accompanied McNaughton to another middle school within the District to observe another teacher present a lesson. 30. In January or February of 2009, Scarbrough conducted her first formal observation of Respondent. Students are assigned “bell work” at the start of each class, which is “start up” work for students to complete while the teacher performs administrative tasks such as attendance. Bell work assignments should typically take five-to-ten minutes to complete. 13 Respondent spent nearly half of the class period assisting her students complete bell work, which left only half of the class period for the scheduled instruction. Respondent did not complete the scheduled instruction. 31. On February 24, 2009, Cooper and Scarbrough held a formal conference with Respondent to discuss continued concerns with her performance. Respondent's Pinnacle grade book entries indicated that 66 percent (69/104) of the students in Respondent's combined classes were receiving an “F” at the time of third-quarter progress reports. Respondent’s Pinnacle grade book entries also revealed that Respondent was not recording student assessments in a timely manner and that Respondent failed to enter grades of any type for the first half of the third quarter. Cooper and Scarbrough reiterated Petitioner's expectation that students’ grades be entered within two weeks of a given assignment and that frequent and ongoing assessment of students’ progress and timely feedback to students are essential components of effective teaching and vital for student learning. Cooper and Scarbrough also reiterated the expectation that lesson plans be submitted in a timely manner, as Respondent continued to fall short of this expectation. 32. On March 2, 2009, Scarbrough conducted another formal observation of Respondent. Scarbrough noted that Respondent was still well behind the required MCC pacing, despite McNaughton’s 14 assistance and revision of the curriculum. Respondent's Pinnacle grade book entries demonstrated a lack of variety in the type of assessments utilized by Respondent to monitor students’ progress and failure on the part of Respondent to record assessments in a timely manner. However, on the appraisal form, Scarbrough indicated that Respondent had successfully demonstrated each of the requisite areas, except Area 7, regarding using technology in instruction. Scarbrough marked they are “not yet demonstrated” due to a question as to how often Respondent entered her grades into Pinnacle. 33. On March 24, 2009, Scarbrough conducted a third formal observation of Respondent. Respondent took nearly the entire class period to review one problem and held the students after the end of class to assign homework. During their post- observation conference, Scarbrough emphasized the need for Respondent to utilize a lesson plan as a schedule of topics to cover to assist Respondent in maintaining pace with the MCC. 34. On March 25, 2009, Cooper issued Respondent a formal written reprimand for “failure to meet expectations for curriculum implementation, and for lack of adequate, timely and appropriate student assessment, and grade reporting.” Respondent remained three units behind the pacing required to successfully complete the MCC by the end of the school year, which placed her students at risk of not acquiring the math 15 skills needed to advance to the next grade level. Respondent failed to record expected UPA grades in her Pinnacle grade book. Cooper reiterated that completion of a UPA for every unit is a “non-negotiable requirement for implementation of the [MCC].” Respondent failed to adequately assess student progress through tests and quizzes and continued to record grades in an untimely manner. Cooper stated that the high failure rate among students in Respondent’s classes was directly related to these deficiencies and that further recurrence of the actions identified would result in further discipline. 35. On April 2, 2009, Scarbrough placed Respondent on a 90-day probation, due to unsatisfactory performance. Despite instruction and modification of the curriculum from McNaughton, Respondent failed to complete required UPAs and remained three units behind the pacing required by the MCC. Respondent demonstrated poor time management, lesson planning, and lesson execution, as evidenced by her observed inability to complete her daily lessons within the allotted class time and her failure to maintain pace with the MCC. Respondent performed little or no assessment of her students’ progress during the third quarter through homework, quizzes, and tests, as evidenced by her Pinnacle grade book entries. 36. Respondent’s students continued to receive an inordinate number of failing and nearly failing grades. In the 16 first quarter of the 2008-2009 school year, 59 percent of Respondent's students received a final grade of “D” or “F.” In the second quarter of the 2008-2009 school year, 62 percent of Respondent’s students received a final grade of “D” or ‘F.” In the third quarter of the 2008-2009 school year, 47 percent of Respondent’s students received a final grade of “D” or “F." The inordinate number of students failing to succeed was particularly troubling since Respondent's class load was the lowest on campus, and her class size average was the smallest in comparison to other core classes. Numerous parents indicated that Respondent was not keeping them adequately informed of students’ progress and requested that their students be transferred from Respondent’s class. Parents complained that Respondent failed to respond to telephone calls and e-mails ina timely manner. 37. Scarbrough provided Respondent written notice of these deficiencies and of the procedural requirements relating to the probationary period. Scarbrough also provided Respondent a Formal Improvement Notice, reiterating her performance deficiencies and expectations for improvement and identifying the assistance available to her, including continued coaching and instruction from Booth, Wolfe, and McNaughton. Scarbrough met with Respondent, Booth, and Wolfe to formulate strategies for Respondent’s continued evaluation. 17 38. On April 24, 2009, Scarbrough conducted a fourth formal observation of Respondent. Respondent again took nearly half of class to complete bell work and utilized only minimal time for actual instruction. Scarbrough noted in her post- observation conference that Respondent needed to reduce/eliminate this time management issue. Respondent also failed to maintain her Pinnacle grade book entries in a timely manner. 39. On May 20, 2009, Scarbrough conducted a fifth formal observation of Respondent. Respondent failed to continue to adequately assess students’ progress and to provide a variety of assessments, as evidenced by the fact that she had given only one quiz and completed only one UPA at the time of the observation. Respondent continued to enter assessments in her Pinnacle grade book in an untimely manner and failed to enter any grade for UPA Unit 7. Respondent continued to submit her lesson plans in an untimely manner. 40. Scarbrough observed Respondent on May 20, 2009, and made notations on the teacher appraisal form. After this observation, Scarbrough marked Respondent demonstrated all of the requisite areas aside from Areas 10 and 14, regarding demonstrating improvement in students’ performance through assessment and adhering to the Code of Ethics and Principles of Professional Conduct, respectively. Scarbrough felt Respondent 18 did not demonstrate Area 10, because Respondent had administered only one quiz and one UPA in a month, and the quiz grades were not entered into Pinnacle timely. Scarbrough marked Respondent deficient in Area 14, because she did not turn in all of her lesson plans in a timely manner. 41. On June 2, 2009, Scarbrough completed the Teacher Performance Appraisal Feedback Summary Form, summarizing Respondent’s performance during probation. Scarbrough found that Respondent demonstrated all areas with the exception of Areas 10 and 14. She noted that Respondent still has some areas to improve upon such as lesson planning, assessments, and grading. Scarbrough gave her opinion that Respondent had not improved upon her identified deficiencies and that her performance remained unsatisfactory. 42. However, on cross-examination, Scarbrough reluctantly agreed that Respondent did improve in many areas outlined in the probation notice, including proper use of daily agenda and bell work. The number of “D’s” and “F’s” in Respondent’s classes decreased. Scarbrough also admitted that Respondent completed the MCC by the end of the year, without skipping any units. She also admitted that after receiving only two complaints from teachers whose classrooms were located a far distance from Respondent, she spoke to Respondent about letting her students out on time, and the situation was remedied. Scarbrough 19 admitted that she did not compare the amount of assessments administered by other sixth-grade mathematic teachers when deciding that Respondent did not administer enough tests or quizzes. 43. Effective August 18, 2009, Respondent voluntarily transferred to Electa Lee Magnet Middle School (Electa Lee), upon the retirement of another teacher. Respondent received approval for transfer up the chain of command to the superintendant. 44. The law provides that a teacher who holds a professional services 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. 45. In light of Respondent’s transfer, Scarbrough met with Scot Boice (Boice), principal of Electa Lee, and Darcy Hopko (Hopko), Petitioner’s director of Human Resources, to review Respondent’s performance issues, the process associated with the statutory probationary period, and the deadline for the end of probation. Teachers were required to report for the 2009-2010 school year on August 18, 2009. At the meeting, Scarbrough, Boice, and Hopko determined that Respondent’s probation expired on September 19, 2010. When Respondent transferred to Electa Lee, she had completed 58 of the 90 days’ probation. He also 20 reviewed only the letter placing Respondent on probation. He did not review her personnel file or other relevant documents. 46. Boice assigned Respondent a position as a sixth-grade math teacher at Electa Lee. On August 25, 2009, Boice and Electa Lee Assistant Principal Wally Hunter met with Respondent to discuss her continued formal observation and the remaining probationary process. 47. On September 3, 2009, Boice again met Respondent to schedule her formal observation. Respondent chose September 10, 2009, at 1:30 p.m., as the date and time for Boice to observe her. 48. Prior to the September 10, 2009, formal observation, Boice did a few walkthroughs of Respondent’s classroom, but never for more than five minutes. 49. On September 10, 2009, Boice conducted his formal observation of Respondent. Boice noted that Respondent took 26 minutes to complete administrative tasks and to assign bell work at the start of class. Respondent did not begin the scheduled lesson until the final ten minutes of class. Boice also observed Respondent releasing students from class late, because they were unable to complete the lesson during the allotted class time. 50. Boice was unable to sufficiently observe some of Respondent’s identified performance deficiencies due to the 21 limited time Respondent worked at Electa Lee prior to the end of her probation. For example, Boice was not able to sufficiently observe the manner, variety, and adequacy of the assessment tools used by Respondent to evaluate student progress, such as homework, quizzes, and tests. Respondent had not yet completed UPA Unit 1 at the time of the formal observation. Respondent provided Boice, as an example of her assessment of the students, a short, handwritten quiz composed of only four or five questions. Boice determined that the quiz was not adequate, but did not give her an opportunity to correct the problem. 51. Boice was also unable to sufficiently observe Respondent's performance in communication with parents, including her timely maintenance of the Pinnacle grade book. Boice informed Respondent that training on proper use of technology in assessment of students, including Pinnacle training, would be provided to all staff at Electa Lee during in-service on September 25, 2009, six days after the 90-day probationary period ended. 52. Despite her prior observed deficiencies, during her probation, in the area of Pinnacle, Respondent failed to attend the in-service training. However, Respondent also failed to schedule her absence in advance, but stated that she was on campus that day, but did not have access to a computer, so she did not attend the in-service. 22 53. On October 1, 2009, Scarbrough and Boice authored a letter to the superintendent of schools, detailing Respondent’s continued unsatisfactory performance. Based on their combined observations and assessments, Scarbrough and Boice concluded that Respondent was still not competent in planning, implementing, and presenting effective lessons and communicating effectively with parents. 54. On October 13, 2009, the superintendent recommended the termination of Respondent’s employment pursuant to Subsection 1012.34(3)(d), Florida Statutes. 55. In the letter to the superintendent, Boice and Scarbrough relied almost exclusively on Respondent’s past performance, in coming to the conclusion that Respondent had not satisfactorily corrected her performance deficiencies. The reasons cited in the letter were those identified in the initial April 2, 2009, probation letter, including lesson planning, students’ assessment, instruction/presentation of subject matter, and communication. The basis for purported deficiencies was Respondent's behavior at Buffalo Creek and, to a much lesser degree, the short observations while Respondent was at Electa Lee. 56. Boice conducted a single observation of Respondent, of less than one class period, on September 10, 2009. Boice took notes regarding the observation on a Teacher Performance 23 Appraisal Feedback Summary Form and provided a copy of that form to Respondent at a meeting the following day. Boice marked that Respondent had demonstrated four of the 14 areas and that she did not demonstrate three areas. Boice felt he did not have enough information in the short time he observed Respondent to form an opinion as to the other seven areas. 57. Boice marked that Respondent did not demonstrate Area 1 because the bell work her students completed took a long time to complete, due, in part, to the fact that Respondent walked up and down the aisles to initial the students’ agendas. Boice also marked Respondent deficient in Area 7, regarding using technology in instruction, because she only employed the use of an ELMO and Pinnacle. Finally, Boice marked Respondent as not having demonstrated knowledge and enthusiasm for the subject matter based upon his understanding that she tolda student that she did not know how to complete a problem. 58. At the meeting with Boice to discuss his notes regarding the observation, Respondent told Boice that she believes she promotes the students’ independent development and learning and that she is extremely enthusiastic about math. Respondent denied having told a student that she did not know how to complete a problem, but explained that she told the class she would calculate an answer and have it for them in the next class period. Respondent further explained that she used an 24 ELMO and Pinnacle during the class and that she did not have computers present in the classroom to use other types of technology. While working at Electa Lee, Respondent received only one parent concern. After a parent-teacher conference, the parent appeared satisfied. Respondent requested that Boice observe her for a second time, but Boice declined and indicated that they were on a timeline. 59. The administrators at Buffalo Creek and Electa Lee had never put any other teacher on performance probation other than Respondent. Cooper and Roland each testified that they did not believe Respondent was incompetent during the 2007-2008 school year. Cooper stated that during his walkthroughs during the 2008-2009 school year, he did not witness any behavior by Respondent that made him feel she was ineffective or having any problems. McNaughton also testified that he did not observe any behavior by Respondent that would lead him to believe she was incompetent or ineffective. 60. The District expected the FCAT math scores of sixth- grade students to be lower after implementation of the MCC. Students at Electa Lee in 2008-2009 followed that pattern, and their scores were lower than the previous years’ scores. The summaries provided by the District showed that the number of students ranked at a level one, who were in fifth grade in 2008, increased by 13 percent by the time they took the FCAT in 2009. 25 Also, the number of students in that same group who were ranked at level four decreased 11 percent during that same time. Further, the Student Dashboard reports showed that overall, Respondent’s students at Eletra Lee were improving their math FCAT scores from the previous year (comparing previous FCAT scores to first-quarter benchmark scores). 61. Many other teachers turned their lesson plans in late while working at Buffalo Creek. Further, Respondent did not teach any advanced classes during 2008-2009 or 2009-2010 school years. Of all of Respondent’s students during the 2008-2009 school year, she had two students who were ranked at a level four on a scale of one to five. The rest of the students were ranked at a three or lower. 62. Other mathematics teachers in the District fell behind during the first year of the MCC, including every mathematics teacher at Electa Lee. Pacing, although it was described as “suggestive,” was treated as mandatory to Respondent. 63. The purpose of performance probation is to allow a teacher an opportunity, through coaching and other assistance, to remedy any performance deficiencies. 64. At the hearing, under cross-examination, Boice testified that he had no problem with Respondent inputting grades or otherwise using the Pinnacle online grade book. Boice also testified that Respondent's grade distribution was 26 acceptable and that he did not have a problem with her not having her lesson plans complete in a timely manner. 65. Respondent weighted her grades while working at Electa Lee. The Grade History Verification report dated September 1, 2009, shows that ten of 80, or 12 percent, of Respondent’s students were earning a “D” or “F” at that point. 66. Boice testified that Respondent did not have any problems in her assessment of students and that Respondent was not having trouble keeping up with the MCC during her time at Electa Lee. In general, Boice found that Respondent’s grading and recordkeeping were acceptable. He also found that Respondent was working within the guidelines of the UPA Unit 1 and the MCC. 67. Boice did not consider extending the probationary period to allow Respondent an opportunity to establish that she had remedied all of the perceived deficiencies in her performance. Instead, he deferred to the information provided to him by Scarbrough for the prior year and related Respondent's present performance in August and September 2009 to her past performance at Buffalo Creek. This was clearly wrong. Respondent appeared to have made significant progress in remedying her performance deficiencies. Boice’s conduct short- circuited that progress and did not permit a thorough observation to be complete before recommending termination. 27
Conclusions For Petitioner: Brian Ussery, Esquire Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez & Hearing, P.A. Post Office Box 639 Tampa, Florida 33602 For Respondent: Melissa C. Mihok, Esquire Kelly & McKee, P.A. 1718 East Seventh Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order that: (a) finds that Petitioner has not proven that Respondent has not satisfactorily corrected the performance deficiencies noted against her; that, (b) Respondent’s contract be reinstated; and that (c) Respondent be awarded back salary, plus benefits, to the extent these accrued during the suspension period. DONE AND ENTERED this 19th day of August, 2010, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2010. 39
