The Issue The issues in this case involve whether the Respondent has engaged in acts of misconduct alleged in the Administrative Complaint, and if so, whether the Respondent's Florida educator's certificate should be revoked or other disciplinary sanction imposed.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with regulating the standards for entry into practice as a teacher, including licensure and the regulation of practice of teachers once they are licensed. The Respondent is a licensed Florida Educator (teacher) holding certificate 795510, covering the area of mathematics. That license is valid through June 30, 2003. During the 1999-2000 and 2000-2001 school years the Respondent was employed with the Washington County School District as a teacher at Vernon Middle School. From September 1999 through December 2000 the Respondent was assigned to teach low-functioning exceptional student education (ESE) students. ESE students are those who have learning disabilities or physical impairments which adversely affect the ability to learn. In January 2001, the Respondent sought and obtained a transfer from her ESE assignment to a position teaching mathematics classes, which was within the scope of her certificate. She continued to teach mathematics until her suspension with pay in April 2001. During the 1999-2000 and 2000-2001 school years the Respondent also taught adult night school courses. When the Respondent became employed as an ESE teacher the Washington County School District issued her a laptop computer for the purpose of preparing individual education plans (IEP) and other paperwork required in the ESE program. The Vernon Middle School guidance counselor and its other ESE teacher were also issued laptop computers for ESE paperwork purposes. Witness Heather Miller, testifying for the Petitioner, stated that all ESE teachers received a letter limiting the use of the laptop to ESE purposes. The Respondent testified that she did not receive any letter or other instructions limiting her use of the computer. Ms. Miller admitted on cross-examination that she was not present when any such instructions may have been delivered to the Respondent. Be that as it may, the gravaman of the charges in the administrative complaint do not involve use of the ESE laptop computer for personal purposes versus employment-related purposes. The Respondent may have been instructed not to use the computer for anything other than ESE instructional-related purposes or may not have been given such instructions, or may simply not recall getting such instructions. Whether or not she received such instructions is immaterial to the charges in the administrative complaint, however. The Respondent had the laptop computer in her classroom when it was first issued to her, while she was learning how to use it. Sometime early in her use of it she installed a program called "Clue Finder" which is a software program for children for the third to fifth grade. She allowed the students to use this software in class. The laptop had never been connected to the internet at the time she permitted students to use it in her classroom and her classroom did not have internet access at that time. She ceased permitting students to use the laptop after she had a discussion with the other ESE teacher, Julie Johnson, about her not permitting her students to use her laptop. The Respondent's students were not permitted to use the laptop from that point forward, which was sometime in the month of February 2000. Each laptop was equipped with a "zip drive" and "zip disc" in order to download the "GibCo Dynamo Program," the program used for ESE paperwork purposes. Therefore, it was unnecessary for ESE employees to access the internet using their school board-issued laptop. ESE employees were permitted to remove and transport their laptops away from school premises so that they could work on IEP and other ESE paperwork at other locations, including their homes. The Respondent took her laptop home sometime during or after February 2000 and began becoming acquainted with the GibCo Dynamo Program, which helps ESE teachers correctly complete IEP's and other paperwork. It was necessary to periodically update the GibCO Program to reflect changes in the ESE forms. The Respondent already had the laptop at home and did her IEP work there because she did not have time to do it in class. Therefore, she asked Brenda Miller, the ESE resource person from the county office, if she could use her laptop to update her GibCo program through her home internet service provider. She received permission and did so in late February or early March 2000. On one occasion prior to the end of the spring 2000 school term, the Respondent permitted one of her adult alternative education students to use her laptop to complete a paper he was writing. She assisted him in using the laptop and was present the entire time he was using it. This incident occurred before she had begun any personal use of the laptop or put any of her programs on it. Therefore, the use occurred before the material contained in Petitioner's Exhibit one was received or stored on the laptop. The Respondent did not teach during the summer of 2000 and spent more time accessing the internet through the school laptop for personal purposes. Although they were still living in the same home, the Respondent and her husband had become estranged and were ultimately divorced. During the summer of 2000 the Respondent used the ICQ program to communicate with and strike-up non-sexual relationships with other people, including males. The ICQ program is a forum or "chat room," with the exchange of ideas and information on virtually any subject. Users fill out a personal profile which informs other users about the person's interests or subjects the person is interested in receiving or sending communications about. The Respondent contends that her ICQ profile only contained her name, age and gender. When such a user starts his or her computer other users are alerted to that user's presence and availability for communication. The user may send or receive communications to or from others, which communications can contain attachments, such as documents or pictures. During the time she was using the laptop to access the ICQ program, the Respondent's husband, her baby-sitter and her baby-sitter's mother also had access to the laptop at various times in her home. The Respondent's laptop was connected to the internet at her home for approximately three and one-half to four months. Sometime during the summer of 2000 lightening struck her modem and destroyed it. The laptop was never connected to the internet after that event. During the time the laptop was connected to the internet in the Respondent's home the documents contained in Petitioner's exhibit one were received on the laptop and placed on the hard drive in fifty-eight program folders. The Respondent maintains that she did not realize that the materials contained in Petitioner's Exhibit One, which were on her computer, had been recorded on her hard drive. She admits to seeing some of those documents in Petitioner's exhibit one but maintains that she had not seen all of them. She maintains that she did not see many of the items in Petitioner's Exhibit One, especially items which indicate the ICQ identification name "Hotrod," which was that of her husband. The Respondent claimed that she never knowingly or intentionally accessed or "downloaded" any pornographic materials on her school laptop, nor did she solicit such material from anyone else. During the time her laptop was operating on the internet, through the ICQ program, she would sometime receive messages with documents attached. On some occasions she states that she would discover sexually explicit material when she opened the document and that when she did so would immediately close the file and assumed that it had been deleted. She claims that she had no idea the information was being saved on the computer's hard drive. If the Respondent received unsolicited, sexually explicit material from someone she had wanted to chat with she states that she would inform them not to send that type of information if they wanted to continue to communicate with her. During the time period in question the Respondent also received unsolicited e-mail of a sexually explicit nature which indicated that she had subscribed to it, although she states she never had. The fact that an e-mail indicates that the recipient is a subscriber does not mean that the recipient actually solicited or subscribed to the e-mail. Rather, the recipient's name could have been obtained from another source merely upon the receiver's profile having been provided to a particular site. It is unclear how the material contained in Petitioner's Exhibit One was saved on the hard drive of the Respondent's laptop. It can not be precisely determined who saved a particular file or who if anyone opened and viewed a particular file, primarily because the Respondent did not have sole access to the computer while it was in her home. It is probable that the Respondent did obtain some of the material that was present on her laptop hard drive, as she did acknowledge having seen some of the material in the past, when confronted with the presence of it by her employer. It cannot be determined from a review of the laptop hard drive that the Respondent named or saved any specific file contained in the Petitioner's exhibit one. After the laptop's modem was destroyed by lighting, the Respondent continued to use the laptop for her IEP's until she returned the computer to the school in September 2000, at the request of Ms. Harrell. The Respondent specifically requested permission to lock the computer up and Ms. Harrell told her she could keep it in a locked storage room, which she did. The storage room was in the administration building, which was next to the building in which her classroom was located. The laptop remained in the locked storage room until October 2000, when the Respondent was assigned a new ESE student. She brought the laptop to the classroom for a short time on that one occasion to work on the new student's IEP, but the students never had access to the computer nor were they ever in a position to see what she was doing on the computer. In January 2001, the Respondent was re-assigned, at her request, from the ESE position to the position of math teacher, which was within her area of certification. She had no further use for the laptop and believed she had removed from it all programs, games and other information she had put on the computer as a result of her personnel use. The Respondent removed her internet service program, Digital Express, and the ICQ Program, believing that this action removed anything associated with these programs from the computer. She was unaware that there were separate program files for the ICQ Program saved to the hard drive. If she had known of this she would have deleted them. Gerald Fender, the Washington County School District Computer Technician indeed saw evidence that an attempt had been made to remove information from the Respondent's laptop when he inspected it. The Respondent's laptop was turned over to her successor, Aubrey Herndon, the new ESE teacher, who placed it into a locked closet in his classroom. The computer remained there until approximately April 10, 2001, when Mr. Herndon removed it to learn how to use it to prepare his IEP. On April 10, 2001, Heather Miller was assisting Mr. Herndon with transferring information from a zip disc to the laptop when she noticed two sites listed on the "favorites" screen, "ALT.Sex Stories" and "Asclepius Himself." Upon seeing these items, Ms. Miller took the laptop and reported what she had found to the principal, Ms. Harrell and the School Resource Officer, Deputy Mark Collins. Ms. Miller and Officer Collins searched the computer for other suspicious files but were unable to locate any. The next day, Gerald Fender, the school board computer technician was called in and asked to search the computer. After an extensive search, Mr. Fender located the ICQ Program in the program files. In the afternoon of April 11, 2001, the Respondent was called to Ms. Harrell's office and confronted with some of the information contained in Petitioner's Exhibit One. The first document the Respondent was shown was page eighteen of Petitioner's Exhibit One from a program called "pal talk" which was supposed to be a program which enables a person to speak to another person over the internet. The Respondent was shocked when she was shown this document because she had thought she had deleted the entire pal talk program and the file containing this document, after she had received the document when she first accessed the pal talk program. She was shocked when this sexually explicit document appeared through a program she had understood to be a voice program and which she thought she had immediately taken off the computer. The Respondent was also shown a copy of page twenty- nine of Petitioner's Exhibit One, which was a sexually explicit picture of a man standing in a shower. She recognized that picture as also coming from her computer. She acknowledged that the two pictures she was shown were from her computer and then she told "them" that they did not have to show her anymore. There was some conflict in the testimony regarding the precise number of pictures from Exhibit One which were shown to the Respondent. It is unnecessary to resolve this discrepancy because all of the testimony of all witnesses present is consistent that the Respondent acknowledged that the pictures were from her laptop computer after being shown a few of them and no more were therefore shown. The Respondent was asked whether the students had ever used the computer and she said that they had, but that the students were allowed to play games on the computer only during the time before she had taken the computer to her home and before the information contained in Petitioner's Exhibit One had ever been received. The Respondent also stated in that initial meeting on April 11, 2001, that she had thought that she had deleted all the information which she had been shown from the computer. During this meeting the Respondent also made a statement to the effect that she had used the laptop at night to access her ICQ file when she "would get bored" while working on class work. She was referring to working at home and not in the classroom. Also, during this meeting she told Officer Collins that the students had never seen the objectionable information, and he indicated that he would interview her students, which she encouraged him to do. No student interviewed indicated that he or she had seen any of the information contained in the Petitioner's Exhibit One. Officer Collins also consulted with Captain Strickland the Chief of Investigations of the Washington County Sheriff's Department Capt. Strickland advised that there was no basis for any criminal charges. The Respondent met with Superintendent Jerry Tyre in his office on May 3, 2001, and submitted her resignation effective May 14, 2001. The Respondent had already been informed by Ms. Harrell before this incident that she was not going to be recommended for renewal as an annual contract teacher for the next year. By resigning rather than contesting the superintendent's suspension, the Respondent believed that she could resolve the situation quickly without any further publicity or notoriety. In June 2001, the Respondent applied for employment as a teacher in Bay County, Florida. She submitted written references from three former colleagues, Paul Parker, her supervisor and director of the Washington County Technician Center; Mary Davis, Adult Education Coordinator and Genevelyn Brown, EAS Assistant. Each of the individuals was informed of the circumstances surrounding the Respondent's resignation and each was still willing to give her a positive reference. The Respondent also solicited support from several parents of students she had taught or tutored while employed in Washington County, during the investigation of this matter by the Department of Education. She informed each of these individuals of the nature of the allegations against her and the circumstances surrounding her resignation. Each of these individuals, Rhonda Duren, Julie Bielinski, Brenda Richards and Victor Marshall, submitted written statements supporting her ability and their belief she should continue as a teacher in Washington County or elsewhere. The Respondent obtained employment as a teacher with the School Board of Bay County at Mosely High for the 2001-2002 school year. She was still employed as a teacher in Bay County at the time of this hearing. She has had no disciplinary problems of a similar nature to that to which occurred in Washington County. It is not clear whether the authorities who hired her in Bay County were aware of the circumstances surrounding her resignation from her position in Washington County. Both prior and subsequent to the events at issue in this case, the Respondent has never had any accusations of any similar misconduct and has no disciplinary record. It has not been established that either the intentional or inadvertent accessing of sexually explicit materials in the privacy of the Respondent's home (even though on a school-issued computer), was immoral or grossly immoral. The downloading of the materials and the presence of them on the computer never became accessible to any students and no student was ever aware that such information was on the computer. It has not been established that the Respondent's failure to delete the sexually explicit material from the computer prior to taking it back to her place of employment constitutes immorality or gross immorality. It has not been shown that the conduct involved in this proceeding was a matter of any notoriety so that her position in the education profession could be the subject of any public disgrace or disrespect or that her service to the community in that profession could be impaired. There is no clear and convincing evidence that the Respondent engaged in personal conduct which is seriously reduced her effectiveness as an employee of the school board. The Petitioner elicited opinion testimony from witnesses which was conclusary and failed to specify precisely how the conduct could seriously reduce her effectiveness as a teacher. The opinion testimony was based on a factual assumption which was not established by the evidence, namely that the Respondent's students used her laptop after the sexually explicit material had been received and thus had reasonable access to the laptop with that material on it. In fact, the evidence of record supports the opposite conclusion; that the students had no such access to the laptop after the sexually explicit material had been received on it, so the opinions to the effect that her effectiveness has been seriously reduced cannot be accepted since they are based upon an invalid assumption. There is no clear and convincing evidence that the Respondent failed to make a reasonable effort to protect students from harmful conditions concerning learning or their mental health or physical safety. The Respondent tried to delete the material from her laptop, albeit unsuccessfully, prior to returning it to school, based upon what she knew at that time. She returned it to school thinking it was deleted when it was not. Nevertheless, her conduct after the computer was returned to her school prevented the students from gaining access to it since the computer was maintained in a locked storeroom, one building removed from the building where her classroom was located. Thus it was highly unlikely that the students would have access to the sexually explicit material on the computer. There is no evidence in the record that they did.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Commissioner of Education dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of March, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2003. COPIES FURNISHED: J. David Holder, Esquire 24357 U.S. Highway 331 South Santa Rosa Beach, Florida 32459 Thomas W. Brooks, Esquire Meyer & Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Kathleen M. Richards, Executive Director Department of Education Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educators Specialist Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Raphu Williams, presently holds Florida Teacher's Certificate Number 3436, Life Graduate State, Rank 3, and is employed in the public schools of Dade County, Florida. By way of background, Respondent was a teacher employed in the public schools during 1937 through 1942 and from 1961 to the present time. He attended Tuskegee Institute, where he received a Bachelor of Science degree. Respondent is presently certified in the fields of Auto Mechanics, Industrial Arts, Business Administration, and Guidance and Counselling. During his educational pursuit, he attended Boston University, Pittsburgh State, FAMU, Harvard, Suffolk Law School, and the University of Miami. When Respondent was re-employed as a teacher during 1961, he taught at Mays for approximately five years and returned to Booker T. Washington High School, where he was employed through school year 1970. At the end of the 1970 school year, he was transferred to Riviera Junior High School, where he remained until 1975. Throughout his career, he always taught "trainable" students. This, according to Respondent, is a student classification based on students whose IQ's range from 55 down to 30. During the 1975-76 school year, he served as an itinerant teacher receiving assignments from his supervisor, Mrs. Wylamere Marshall. Pauline A. Young, an educational specialist for Dade County for approximately eight years, met Respondent while he was employed at Riviera Junior High School. Miss Young was called upon to observe the vocational unit as a liaison from the area office; and in her opinion, Respondent's performance was inadequate. This opinion rested upon her observation that when she visited the Respondent's classroom, he was asleep. She observed the Respondent asleep on two occasions. On the first occasion, she awakened him and the second time, she browsed around his room for several minutes; and he never knew that she was there. She testified that the students were "just milling round the room -- doing nothing in particular". She testified that when she awakened the Respondent on the first occasion, he acknowledged the fact that he was asleep, and Respondent said "What can you expect? They can only do so much". The Respondent was then teaching trainable mentally-retarded students. While observing Respondent's class, Miss Young requested that Respondent show her his lesson plans, whereupon he responded that he had no lesson plans, his plans were in his head and that he had no plans for Mr. Jones, Mr. Whigham, or Mr. Turner. Respondent advised Miss Young that the "white man owed him this salary and that he was going to continue to stay on even though he made more money on other jobs and, in fact, did not need this job". Miss Young further testified that when Respondent was presented with new reading techniques, he resisted change. Respecting Respondent's classroom contact with students, Miss Young observed that Respondent opened the class by calling the class roll and thereafter, he had no structured format to conduct his class. Miss Young observed Respondent criticizing a student, Darlene Mickens' dress complaining that "she should not wear tennis shoes because she was black and further that because she was black, she need not look bad". In Miss Young's opinion, the student was neat and appropriately dressed. Finally, she testified that she never observed Respondent doing anything productive during her observation of him during his classes. Dora Whitaker Wright, an instructor employed by the Dade County School Board for approximately 21 years and presently the Assistant Principal and teacher at Richmond Heights in charge of guidance, testified that she has known the Respondent for approximately two years. During this period, she visited Respondent's classroom to observe on one occasion, and she also noted that his classroom was unsupervised on approximately three occasions. She further testified that the Respondent failed to report for duty when scheduled. On the three occasions in which Respondent left his class unsupervised, she remained with the students for approximately 15 minutes on the first occasion; approximately 20 minutes on the second occasion; and on the third occasion, the students were left unsupervised and roamed the halls without a pass. She examined Respondent's lesson plans and noted that they contained little, if any, guidance in which to advise emergency substitute teachers or administrators what the teacher (Respondent) was teaching his students. She, thereafter, gave the Respondent sample lesson plans that were submitted by other instructors as a guide to prepare his lesson plans. When Mrs. Wright advised Respondent that he would be held accountable for the return of the classroom books, he rebelled in front of students complaining that it was not his responsibility to account for books given to students. He also contested Mrs. Wright's authority stating that he, like Mrs. Wright, had a Master's degree and had taught as much as she. He further remarked that he had more teaching experience than anyone presently teaching in that school. Among other things, Mrs. Wright's duties include the proper classification and testing of "trainable students" and to ascertain that the instructors are utilizing proper teaching methods. When she discussed the "core" lesson plans systems with Respondent and the teaching guidelines that were published and approved by the school district, the Respondent objected to the use of such plans. Additionally, she testified that he refused to accept the textbooks for each student based on his position that he would not be held accountable for the textbooks under any circumstances. She testified that the School Board, although desirous of giving each student an individual textbook, instructional level, lacked the funds for such an expenditure. Respondent threatened to hurt a student (Lorenzo Richardson) if he was not removed from his class. When cautioned that the supervisor would be visiting his classroom on various days, Mrs. Wright testified that the Respondent rebelled, stating that "he would teach things the way he wanted". Respondent advised Mrs. Wright that he was hit with a soda can while he was laying his head down on his desk. She testified that during her observance of the Respondent, she noticed him playing checkers with students and offered them one dollar if they beat him in a game of checkers. Helen Gentile, the curriculum secretary, who is responsible for calling substitutes, maintaining inventory records, ordering materials and maintaining emergency lesson plans, testified that she received two complaints from substitute teachers regarding the failure of Respondent to provide adequate emergency lesson plans. She examined the Respondent's lesson plans and the only thing contained therein was "personal philosophies of what Respondent noted about each student, with no direction for course structure for students". She recalled Respondent being tardy on at least three occasions and that he failed to call to advise that he would be late. She testified that from time to time, it was necessary that she call upon instructors to cover for classes during the "free period" but that when she would ask Respondent to do this, he yelled at her, stating that it was not his responsibility to cover classes. She did, however, testify that after Respondent shouted to her, he later apologized. Zackery Lee Hagen, a 14-year-old student of Respondent for approximately two years, testified that he was struck by a desk that was pushed by Respondent. Hagan recalled incidents in which the Respondent slept in class and recalled one instance in which he awakened the Respondent by banking on his desk. He also recalled the Respondent using profanity, such as "damn" in class. Hagen testified that his reading skill level had improved under the Respondent's teaching. Jane Boyer, secretary to the principal, Lonnie Coleman, testified that the Respondent failed to follow the established policy of the School Board. Specifically, she testified that he would not timely call to advise of his absence which created hardships in locating substitute teachers. She recalled instances in which students were locked out of their classrooms and were sitting in the hall approximately eight to ten times. On the other hand, she testified that when Respondent wanted requests, he wanted an answer the very instant in which the request was made. Mrs. Boyer observed the Respondent using profanity on at least two occasions. On one occasion, she recalled the Respondent using profanity while escorting a student to Mr. Coleman's office, and the second occasion occurred during a telephone conversation with a parent. She testified that the Respondent, on the second occasion, was talking to a neighbor of a parent and wanted the neighbor to summon the student home "before he killed him". She testified that the Respondent indicated to her that the student had struck the Respondent with a book, whereupon the Respondent called the student a "little bastard". Cynthia Grace, a 13-year-old student of Respondent, also recalled instances in which the Respondent used profane language when the class was unruly. Students, Charles Gardner and Oscar Bryant, also recalled the Respondent using profanity during his teaching. Gardner also confirmed earlier testimony that the Respondent was asleep when he was struck on the head by a coca-cola can. Mitchell Watson, a student, also recalled an instance in which the Respondent fell asleep in class. He testified that the Respondent observed a fight between two students and made no attempt to control the situation or to halt the fight. Clarence H. Gilliard, an instructor and department chairman for special education at Richmond Heights, explained his difficulty in receiving emergency lesson plans and Respondent's failure to accept responsibility for textbooks. He also testified that the Respondent continuously balked when requested to follow established procedures set forth by the school board. Donald Helip, an Assistant Principal at Richmond Heights Junior High School, was called upon to try to resolve the differences which Respondent was having in following procedures. He testified that in so doing, he observed the Respondent's classroom; and on several occasions, the students were left unsupervised. When he cautioned Respondent regarding this problem, the Respondent balked. He testified that after repeated requests, Respondent ultimately turned in emergency lesson plans which were inadequate inasmuch as they only contained "philosophical statements", as opposed to directives that substitute teachers could follow during the Respondent's absence. He recalled one instance in which the Respondent reported late for work and his students had to be reassigned to another instructor. Immediately thereafter, he passed the teacher's lounge and the Respondent was there talking to another instructor. Mr. Helip counselled the Respondent about this problem whereupon the Respondent advised that "he was new and a nice guy and that he should not be used by the system". He further cautioned Mr. Helip that he should not "cross him or if he did, he would be crushed". Mr. Helip perceived these remarks as a threat. Finally, the Respondent advised Mr. Helip that he should advise what kind of flowers he liked so that he would receive them if he, in fact, got hurt. Mr. Helip also voiced his opinion that the Respondent was not an effective school board employee inasmuch as he (1) failed to report timely for work, (2) enjoyed a poor relationship with students, including sleeping while on duty, and (3) based upon his failure to follow established procedures. Lonnie C. Coleman, the principal of Richmond Heights Junior High School for approximately three years, testified that the Respondent was assigned to his school as an itinerant school teacher (surplus) during the past school year. During October, he was assigned classes. Coleman testified that Respondent repeatedly balked at assignments and due to his repeated protests, he removed him from the class due to the number and magnitude of problems he encountered from Respondent. Specifically, he testified that the Respondent averaged two to three disciplinary referrals to him daily and Respondent continuously ejected students from his class because they did not have writing paper. He testified that when this problem increased, he had to issue a directive to Respondent that students were to be kept in class despite the fact that they did not have writing paper. He testified as to the inadequacy of the Respondent's emergency lesson plans which were submitted only due to repeated requests from his department head. He testified that when the Respondent was provided a sample lesson plan as a directive in preparing his plans, the Respondent refused and based on the repeated problems from Respondent, he requested and was granted permission to remove him from the classroom. He termed the Respondent's attendance as being "spotty" and recalled an instance in which the Respondent attended a meeting away from his assigned area without permission. Based thereon, in his opinion, the Respondent's effectiveness had been reduced and should not be permitted to remain an instructor in the Dade County School System. He denied that he and respondent had any personal problems or personality clashes and, in fact, testified that when he confronted the Respondent with procedural problems and afforded the Respondent an opportunity to correct such, the Respondent failed to take any corrective action. Wylamere Marshall, area director and coordinator for the Guidance Division, testified that she offered Respondent a position in order that the could tap his resources as an employability skills teacher to work with special education students. Initially, she assigned the Respondent as an itinerant teacher and experienced problems with him reporting to duty as assigned. She indicated that the Respondent was generally irresponsible and repeatedly slept on the job. She testified that the Respondent requested and was, in fact, granted a transfer during 1975-76 to Richmond Heights Junior High School. She testified that some of the deficiencies in the Respondent's performance included his failure to plan or supervise class activities. He also permitted students to randomly select class assignments. She testified that although the Respondent had numerous shortcoming as a teacher-educator, she felt that he was an able administrator. As to her opinion of Respondent as a teacher, she testified that he was totally inefficient and was not an effective teacher in the educable mentally-retarded program (special education). Bennie Pollock, a Social Studies teacher at Richmond Heights Junior High School during the school year 1975-76 and the beginning of the school year 1976-77 and presently employed as a bargaining agent representative for United Teachers of Dade, testified that he met Respondent during his tenure at Richmond Heights Junior High School. He testified that during the fall of 1976, while the Respondent was serving as a surplus teacher, he had a conversation with Lonnie Coleman regarding the Respondent. He had been approached by the United Teachers of Dade to accept a position which he ultimately accepted around October 13, 1976. He testified that Coleman told him "Bennie, I've got a problem, they want me to take Ralphu (Respondent) in another teacher's place, who had recently resigned (Diana Hunt). I don't want the man. I am going to do everything I can to get rid of him if they make me take him." Pollock responded "We have a contract; it's not a buffet table. There are ways of doing things." He testified that Coleman indicated to him that "We might have to clash on this", whereupon Mr. Pollock replied "Make sure you've got yourself right and do it because if, you know, I'll go by the contract 100 percent." The Respondent expressed his opinion that he was not an administrator but was, rather, a teacher, a profession which motivates him. He recalled that one instructor, Diana Hunt, also had no teaching plans. He testified that, initially, he conducts an orientation in his class to determine the category in which students should be placed. He prefers individual assignments for each student, as opposed to the "core" system, wherein all students are taught around the "core". While he agreed that students are permitted to come in class a certain way, for example, wearing jeans, sneakers, etc., he wanted students to come to school looking and smelling clean before he could teach them. He also indicated that he wanted three or four instructional level texts for each student, whereas the county only gave one book to each student. He expressed his opinion that this thwarted growth and did nothing to stimulate students to read. He expressed the belief that he was being singled out because he was called in without exception to report his lateness. He recalled only one instance in which he was "tied up" and, therefore, called in late. He testified that during school year 1976-77, while assigned teaching duties, he was absent approximately four days. Respondent voiced the opinion that there was no difference in the emergency lesson plan submitted by him as compared to that of instructor Gilliard, who is also an instructor at Richmond Heights Junior High School (Respondent's Exhibit Nos. 2 and 3). Respondent was evaluated by Mr. Coleman for the school year 1975-76, at which time he received an average score of 3.8 out of a possible 5.0. See Respondent's Exhibit No. 1). Based upon the evidence adduced herein, including the conflicting testimony of the various witnesses, I find that there is sufficient substantial and competent evidence to conclude that the Respondent, on numerous occasions, failed to follow established guidelines and, therefore, ran afoul of the dictates of Chapters 232.27 and 231.09(2), (3), (4), and (6), Florida Statutes. Additionally, by striking the student with the desk, he ran afoul of Chapter 232.27, Florida Statutes, respecting corporal punishment, and he failed to follow Chapter 231.28, Florida Statutes, by his failure to follow State Board of Education Rules contained in Chapter 6B-5, which are entitled "Standards for Competent Professional Performance". Numerous witnesses testified that the Respondent was asleep in his classroom on various occasions. Chapter 231.28, Florida Statutes, provides that an educator's certificate may be revoked or suspended on several different grounds. The evidence here reveals that the Respondent repeatedly refused to follow written directives from administrators regarding corporal punishment, the filing of lesson plans, his use of abusive language during his classroom instruction, the use of threatening language to other instructors and/or administrators, and the striking of another student, apparently innocent, with a desk, and his eviction of students from his classroom constitute conduct from which sanctions should flow based on the department's rules. It is true that almost all of the student witnesses who testified indicated that their reading level had improved under the Respondent's instructions. They all consistently testified that he used abusive and profane language during class time and fell asleep during class periods. I have also considered the Respondent's contention that he is a victim of a disparity of treatment in that other teachers file similar lesson plans without criticism by administrators. However, in proving a case of disparity, it must be shown that other instructors were permitted to file plans and that they were not counselled and failed to take other corrective steps to remedy the stated deficiencies. In this regard, no such showing has been made and, therefore, the proof falls short. I shall, therefore, recommend that the Respondent be found guilty of unprofessional and unethical acts and conduct based upon testimony which revealed that he pushed and hit a student in an effort to evict a student from his classroom in violation of Subsection 232.27, Florida Statutes, and 6B5.07.1 and (4) of the Rules of the Board of Education. I shall further recommend that the Respondent be found guilty of using abusive, inappropriate, profane and threatening language, as set forth in detail above, in violation of Chapter 239.09(2), (3), (4) and (6), Florida Statutes, based on conduct set forth in detail above. In consideration of the Respondent's total dedication to the teaching profession and his educational pursuits, I shall only recommend that his teacher's certificate be suspended for a period of two years.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, I hereby recommend: That the Respondent's teacher's certificate be suspended for a period of two years. DONE and ENTERED this 22nd day of August, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 E. College Avenue Tallahassee, Florida Elizabeth J. DuFresne, Esquire 1809 Brickell Ave., Ste. 208 Miami, Florida Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32304 Tom Benton Professional Practices Council 319 West Madison Street Tallahassee, Florida
The Issue Whether Respondent violated Subsections 1012.795(1)(b), 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rule 6B-1.006(3)(a) and, if so, what discipline should be imposed.
Findings Of Fact Lowe holds Florida Educator's Certificate No. 353851, covering the areas of administration/supervision, early childhood education, elementary education, emotionally handicapped, mentally handicapped, specific learning disabilities, gifted, art, reading, general science, biology, and mathematics, which was valid through June 30, 2002. In 1992, Lowe became employed with the Pinellas County School District as an exceptional student education (ESE) teacher at Safety Harbor I.B.I.S. (Safety Harbor). Lowe's overall performance evaluations from 1992 through the spring of 1997 were deemed to meet expectations. However, on each evaluation it was noted that Lowe had a problem with attendance and punctuality and needed to improve in those areas. In the fall of 1995, Keith Davis, the principal at Safety Harbor, had two conferences with Lowe concerning her attendance and punctuality. When she began working at Safety Harbor, Lowe was responsible for the care of her mother, who had Alzheimer's. From 1992 through 1996, the majority of Lowe's tardiness and absenteeism related to problems that she was having with the care of her mother. Lowe's mother passed away in 1996. However, in her evaluation in 1997, it was noted that the "area of attendance and punctuality is irregular" and that Lowe needed to "[c]ontinue to identify best practices that when implemented serve to produce a healthy balance with personal/professional life." Due to a lack of students at Safety Harbor, Lowe was transferred to Coachman Fundamental School (Coachman) in September 1997. When Lowe began teaching at Coachman, she taught approximately 35 students in an inclusion setting, which means that she went from classroom to classroom and did team teaching with the regular teacher in each classroom. Lowe described her role in the inclusion setting as "more of a co-teacher, more of an assistant rather than a teacher because they [the regular teachers] would do their presentation." Her first semester at Coachman, Lowe had an intern, who had come with her from Safety Harbor. In the Spring of 1998, the teacher who was responsible for the individual education plans (IEP) for the gifted students at Coachman resigned. Because Lowe had a flexible schedule, she volunteered to do the 75 IEPs which needed to be done. The IEPs for the gifted students were not as extensive as the ones which Lowe did for her ESE students who were classified as having a specific learning disability (SLD). Her duties for each gifted student consisted of preparing a two-page IEP, notifying the parents and the other school to which the gifted student would be going, and holding an IEP meeting. Her duties for gifted students lasted for one semester. The education of ESE students is governed by both state and federal laws.1 In 1997, significant changes were made in the federal law concerning documentation required for education of ESE students. In 1998, the state developed a matrix which had to be done for each ESE student. The matrix contained information which determined the amount of funding for each ESE student. The ESE teachers in the Pinellas County Public Schools were given training on the changes. In September 1998, the principal of Coachman, Lawrence G. Goodbread (Goodbread), reviewed Lowe's SLD files and found that nine of 14 seventh grade and eight of ten eighth grade folders were out of compliance due to outdated IEPs. Goodbread discussed the issue with Lowe and offered her clerical assistance, which she declined. Two weeks later he reviewed the SLD files again and found some questionable signatures and that the signature page for the Notification of Meeting form was missing in most cases. He reported his findings to Jan Rouse, who was the director of the Pinellas County Middles Schools and ESE. Goodbread asked Hester Thuerk (Thuerk), a staffing specialist for the ESE program, to review Lowe's SLD files. On September 29, 1998, Thuerk reviewed 11 files and found numerous errors and omissions. She reported her findings to Goodbread. By memorandum dated November 12, 1998, Pam Connolly (Connolly), supervisor of ESE, advised Jim Barker (Barker), Administrator of the Office of Professional Standards, of her findings when she reviewed folders of the SLD students, which were to be maintained by Lowe. Connolly found two specific repeat problems: failure to include appropriate documentation on re-evaluations; and completion of the majority of funding matrices in the same manner when each student is to be rated according to individual needs. Additionally, she found other errors, such as failing to address each item on the IEP, incorrectly marking items on IEPs, and keeping original IEPs in the folder rather than copies. Of the 23 files reviewed, 21 files contained errors. On November 20, 1998, a meeting was held with Lowe to discuss the problems with the SLD folders. Among those in attendance were Goodbread, Barker, and Connolly. Lowe acknowledged that she had some errors and would try to correct them in the future. Thuerk was assigned to assist Lowe in updating the IEPs for which she was responsible. Lowe and Thuerk met on February 10, 1999, and completed a handwritten IEP of one of Lowe's students. Lowe was to complete the computer-generated IEP for the student and then proceed to complete four other IEPs before their next meeting on February 24, 1998. In addition, Lowe was to have her computer ready for any changes that would need to be made to the draft IEPs and get from her data prep person a listing of the due dates for re-evaluations. When Thuerk and Lowe met on February 24, none of the assignments had been done. By memorandum dated February 25, 1998, Thuerk advised Lowe that she needed to follow the agreed-on schedule. Another meeting was scheduled for March 3, 1998, and Lowe was advised that Thuerk would be available to meet on March 17, 1998, if Lowe needed additional assistance. Lowe and Thuerk met on March 11, 1998, and they prepared an IEP. Thuerk thought that the meeting had gone well and that Lowe was becoming more comfortable with IEPs and was understanding what was needed to write up the Present Level of Performance section of the IEPs. In the spring of 1998, Lowe started law school in Orlando, Florida, which is approximately two hours away from Tarpon Springs. Additionally, Lowe had a paper route in the morning before school. At some time during the 1999-2000 school year, Coachman began using a self-contained model of teaching. This model required Lowe to stay in her own classroom. Lowe had between 22 and 24 regular students. In addition, she had 12 students who were in mainstream classes, but for whom Lowe was responsible for completing their IEPs. In September 1999, Dawn Coffin (Coffin), assistant principal, took over the responsibilities of Goodbread, who was experiencing health problems. Coffin advised Lowe on September 9, 1999, that 14 of the 36 folders for Lowe's SLD students had IEPs which were out of date. On October 25, 1999, Diana Lenox (Lenox), supervisor for SLD, reviewed 11 SLD staffing files that had been flagged as possibly being out of compliance. Lenox found errors in each of the staffing files and sent Lowe a memorandum detailing the errors that she found. Lowe advised Lenox some of the errors occurred because she was having difficulty getting the information from the original files, which were kept under lock. Lenox suggested that Lowe get her staffing clerk to make copies of the original files so that Lowe would have the necessary information any time that she needed it. On November 29, 1999, Thuerk conducted a mini-audit on some of Lowe's folders. None of the folders reviewed were in compliance. Because of the non-compliance issues, Thuerk was asked to attend future re-evaluation meetings. On December 6, 1999, Lowe was scheduled to have 30-minute re-evaluation meetings on three students beginning at 8:00 a.m. On the day of the meetings, Lowe arrived at work at 7:55 a.m. Coffin called Lowe on the intercom and reminded Lowe of the meeting. At 8:10 a.m., Coffin called Lowe to come to the meeting and again at 8:20 a.m. Lowe got to the meeting at 8:25 a.m., with a plastic box full of forms. She had no completed paperwork, no goals, no objectives, and no planning forms. Thuerk had to conduct the re-evaluation scheduled for 8:30 a.m. because of Lowe's tardiness and failure to have necessary paperwork completed. Thuerk found that for the second re-evaluation meeting, paperwork was missing from the file. When questioned about the missing paperwork, Lowe responded that she did not know where it was. For the third re-evaluation meeting, Lowe was not prepared and paperwork was missing. Lowe stated that the paperwork had been completed, but she did not know where it was. By memorandum dated December 6, 1999, Coffin recounted what happened at the re-evaluation meetings and told Lowe that her behavior was unprofessional and embarrassing. Coffin explained that inaccuracies in the matrices and IEPs could result in a loss of funding. Coffin urged Lowe to get professional help regarding her personal problems and to allow Thuerk and Lennox to help her with the paperwork. Lowe was advised that she needed to take the necessary steps to get the folders in order. On January 19, 2000, Bessette, administrator of the Office of Professional Standards, met with Lowe, Coffin, and a union representative to discuss the problems Lowe was having getting her ESE files in compliance. In order to help Lowe get her paperwork up to date, she was given five temporary-duty-elsewhere (TDE) days from January 24 through 28, 2000, so that she could concentrate on her paperwork. This meant that Lowe would be relieved of teaching duties, a substitute would be hired to teach classes, and she would have nothing to do but work on her files for 33 students. Except for one day during this period when Lowe had to attend a workshop, she had time to work on the files. Lowe was advised that after January 28, an audit would be done on the 33 folders. Thuerk conducted the audit on February 8 and found errors in 26 of the files. On February 23, 2000, Lowe was given a written reprimand for her continued failure to bring her staffing folders in compliance. In the letter of reprimand, Bessette advised that it was imperative that she take all necessary steps to update the files. Bessette gave the following order: "I am directing you to complete all ESE paperwork in compliance with district procedures and timelines." On April 10, 2000, another audit was done on Lowe's ESE files. Errors were found in 22 files. By memorandum dated April 10, 2000, Coffin advised Lowe of the errors found. Coffin also discussed in the memorandum the issue of Lowe's tardiness and absenteeism. A substitute was filling in for Lowe at least once a week, and Coffin had to "scramble several times a week to make sure [Lowe's] class [was] covered until [Lowe] arrived on campus." During the 1999-2000 school year, Lowe was absent 24 times. Lowe had scheduled a re-evaluation meeting with a parent for May 18, 2000, at 8:30 a.m., which is 15 minutes before classes start. Lowe did not arrive for the meeting until 8:45 a.m., and had nothing prepared for the meeting. She left her classes in care of a teacher's assistant until 11:00 a.m. Coffin advised Lowe by memorandum dated May 19, 2000, that meetings should be scheduled before or after classes or during a planning period, but not during classroom instruction time. On May 23, 2000, Lowe was not in her classroom when her students arrived. A teacher's assistant covered her class for her. Lowe did not get to school until 9:45 a.m., stating that she was at Clearwater High School writing an IEP. Lowe should not have been away from her classes to write an IEP. The normal hours for teachers were 7:50 a.m. to 3:20 p.m., and the student hours were from 8:45 a.m. to 3:05 p.m. Coffin again advised Lowe by memorandum dated May 23, 2000, that such behavior was not acceptable. On May 31, 2000, Bessette met with Lowe, who advised him that by the end of the school year that all of her files would be updated. On June 7, 2000, Lenox reviewed the ESE files prepared by Lowe and found errors in 29 of the 33 files. At the end of the 1999-2000 school year, Lowe was to prepare the case manager files for her eighth-grade students, so that the files could be delivered to the high schools which the students would be attending the next school year. She failed to turn in her grade book and several pieces of software. On June 9, 2000, she told Bessette that she would come back to school the following week to work on the files. By 1:20 p.m., on June 13, 2000, Lowe had not returned to work on the files. The eighth-grade files were to be delivered to the high schools by the data prep clerk, but since Lowe did not have the files ready, Lowe took the responsibility to deliver the files to the high school. She did not deliver the files to the high school, and by August 21, 2000, the staff at the high schools were calling Coffin asking for the files. In July 2000, Lowe was scheduled to attend classroom learning systems training. Lowe had specifically asked to be included in the training. Lowe did not go to the training, which took a valuable training spot that could have been used by another teacher. Additionally, Lowe had asked for additional duty on August 15 and 16, 2000, but she failed to appear on those days. On September 19, 2000, Thuerk, Coffin, Lenox, and Nancy Fry, a staffing specialist, reviewed the ESE files for the seventh and eighth grades. Of the files reviewed 20 contained errors. Four of the files were missing. Lowe had made little progress in keeping her ESE paperwork in compliance. On October 17, 2000, Bessette wrote a memorandum to the superintendent of the Pinellas County Schools recommending that Lowe be dismissed. Lowe was suspended without pay. She resigned her position with the Pinellas County Schools on January 26, 2001. By letter dated January 21, 2001, Bircher, attorney for Pinellas County Schools, advised Lowe's counsel that in exchange for Lowe's resignation that Lowe would be eligible for rehire. Bircher noted "that positive evaluations from teaching elsewhere would certainly assist [Lowe] in seeking employment again with the District." An IEP is the document that sets forth the instruction that is to be provided to an ESE student. An IEP is prepared to ensure that services are provided appropriately to an ESE student. An IEP is done annually for each ESE student. Over the years, the paperwork related to the education of ESE students has grown significantly. While the task of maintaining ESE files in an accurate and timely manner may be onerous, it was part of Lowe's responsibilities as an ESE teacher. Documentation for ESE students, including IEPs, is subject to both state and federal audits. Failure to maintain files for ESE students appropriately can result in a loss of funding. The Pinellas County Schools did lose between eight and 12 million dollars for ESE students, much of which can be attributed to record keeping errors. Although the evidence did not demonstrate a loss of funding that was directly attributable to Lowe's failure to maintain adequate and timely records, the overall loss is significant to demonstrate the importance of properly maintaining ESE records. When Lowe was in the classroom, she did an excellent job of teaching. However, her absenteeism and tardiness affected the education of her students. If Lowe was not in the classroom, the students would have to be taught by a substitute teacher or be left in the charge of a teacher's assistant. A substitute teacher is not going to provide the quality of instruction that Lowe could have provided. A teacher's assistant is not a teacher; thus, leaving the students with a teacher's assistant could not result in effective teaching. Teachers are to set examples for their students. Lowe's failure to come to work or to come to work late was not conducive to instilling punctuality or the importance of being responsible to her students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Doukissa M. Lowe not guilty of a violation of Subsection 1012.795(1)(c), Florida Statutes (2003); finding Doukissa M. Lowe guilty of violating Subsections 1012.795(1)(b), (f), and (g), Florida Statutes (2003), and Florida Administrative Code Rule 6B-1.006(3)(a); suspending her teaching certificate for six months, retroactively from the last date that she worked as a teacher; prohibiting her from teaching ESE classes for two years from the date of the final order; and placing her on probation for five years. DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2004.
The Issue The issue in this case is whether there is just cause to terminate Paula Sinclair's employment with the Broward County School Board based upon the allegations made in its Administrative Complaint dated July 9, 2015.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward 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. Sinclair started her employment with Petitioner in 2007. She was employed as a guidance counselor pursuant to a professional services contract. Sinclair has a Florida Educator's Certificate and received a bachelor's degree in youth and community studies from Surrey University in England, a postgraduate diploma in social work and criminology from Middlesex University in England, and a master's degree in school guidance counseling from Nova University. Sinclair was a guidance counselor at Walter C. Young Middle School for the 2007-2008 school year. The following school term, 2008-2009 school year, Sinclair transferred to New River Middle School and held the position of a guidance counselor. 2009-2010 School Year Sinclair was placed at Indian Ridge Middle School ("Indian Ridge") for the 2009-2010 school year. She was assigned as the eighth grade guidance counselor. On August 3, 2009, Assistant Principal Michael Lyons ("Lyons"), and Busjit-Bhalil ("Busjit"), guidance counselor, met with Sinclair to explain her duties and responsibilities. Indian Ridge opened for the school year on August 25, 2009, and Sinclair started getting parent complaints about her performance. She also started making scheduling errors. On August 27, 2009, Sinclair had her first conference with Lyons. On August 28, 2009, Lyons had a second conference with Sinclair regarding her scheduling being taken over by Busjit because Sinclair was either not completing the work or the work was not timely done. On September 2, 2009, Lyons set a meeting for September 8, 2009, with Sinclair, Busjit, and Zagari to discuss Sinclair's job performance because Sinclair had made numerous mistakes. On September 3, 2009, Sinclair placed an eighth grade student in a seventh grade course. On September 11, 2009, Lyons met with Sinclair and outlined Sinclair's major areas of job performance concerns. Scheduling, poor communications with parents, inability to provide accurate information, and failure to read and respond to emails in a timely manner were addressed with Sinclair. Lyons set up a cycle of assistance to provide Sinclair the help she needed to bring her performance up to District level. Lyons also provided Sinclair training. He directed Sinclair to work with the following co-workers to get specific training in the different areas she needed improvement: Busjit, to review all guidance functions and duties, scheduling practices, procedures and protocols; Nancy Bourbeau ("Bourbeau") for TERMS1/; Susan Perless ("Perless") in regard to ESE students; Brown for best practices with parents and to read CAB system emails daily, as well as formulate a record-keeping system for phone communications. During the meeting, Sinclair responded by staring silently at Lyons. Sinclair was provided two weeks to correct the performance deficiencies. On September 15, 2009, Lyons followed up the meeting discussions from September 11, 2009, with a memo to Sinclair outlining the serious concerns regarding her job performance. The memo deemed the following areas substandard: Students being placed in double reading classes that are not designed for being double blocked. Placing 8th grade students in 7th grade classes. Placing advanced students in regular education classes. Providing only 5 courses for students when they should have 6 courses. Wrong team designations on student schedules. Incorrect course and section numbers on student schedules. Interacting with parents in a curt manner. Failure to return phone calls from parents. Providing wrong or inadequate information to parents. Failure to follow direction in formulating a new algebra class. Failure to notify impacted teachers of schedule changes. Failure to process schedule changes in a timely manner. Failure to open and read emails in a timely manner. A general lack of "Withitness" in regard to school matters. On September 15, 2009, Busjit started Sinclair's training on TERMS panels. She reviewed the differences among the intensive reading classes and processes for accessing the server and database. On September 16, 2009, Bourbeau, data management specialist, trained Sinclair on TERMS and scheduling. Bourbeau went through every panel guidance counselors needed to know and discussed the procedures of a schedule change, as well as how to create a new schedule. On September 22, 2009, Perless, ESE specialist, reviewed the different roles in ESE with Sinclair, went over the panels in TERMS, and discussed the role of guidance in the area of ESE. After Sinclair received the training and assistance, her performance did not improve at all. She was inept in performing scheduling tasks and continued to assign students to the wrong class. Busjit continued to instruct Sinclair numerous times on the process of scheduling students properly. On December 4, 2009, Lyons discovered the physical education ("PE") waivers2/ were not completed. Lyons provided Sinclair a directive to ensure that all students in need of a PE waiver have one by December 18, 2009. Lyons first instructed Sinclair to perform the task by August 28, 2009, previously extended the deadline to November 13, 2009, and addressed the issue again on November 16, 2009. On or about December 4, 2009, a conference was held with Sinclair, which was detailed in a summary of conference memo dated December 8, 2009. The memo detailed that Sinclair would continue to receive assistance to help improve her performance, but if her performance did not improve, she would be placed on a Performance Development Plan ("PDP"). The next day Sinclair was absent from work. On December 18, 2009, Lyons wrote a memo to Respondent concerning her excessive absenteeism and requested Sinclair to provide a doctor's note justifying her absences since December 9, 2009. On December 19, 2009, Sinclair produced a Return to Work Certificate from Dr. Alvarez ("Alvarez") with a return date to start during the school holiday period, December 21, 2009. On or about January 15, 2010, Sinclair reported that she was taken to the emergency room the previous evening and filed for Family Medical Leave ("FMLA") requesting 12 weeks of leave from work. The request was accompanied by a Certificate of Health Care Provider and stated Sinclair had been treated by Alvarez since 1997 and was unable to perform her duties. On January 15, 2010, while out on FMLA, Sinclair applied for a hardship transfer to another school for the 2010- 2011 school year. On February 19, 2010, while on leave Sinclair also filed a discrimination charge against Lyons and the principal, which was denied. Upon Sinclair's return to work, her inability to perform her duties continued, and she made repeated mistakes. Sinclair failed to submit the students' PE waivers and educational plans after repeated directives from administration. She also failed to complete the Florida Virtual students' list. Sinclair's work was substandard. She could not perform basic routine counseling functions of the job, such as the scheduling of students. Sinclair received a satisfactory performance rating in the Instructional Personnel Assessment System because Broward County Teachers Union contract prohibits any employee from getting less than a satisfactory without first being on a PDP. 2010-2011 School Year Sinclair transferred to Northeast High School ("Northeast") for the 2010-2011 school year. She was assigned the ninth grade and a third of the seniors, who were split between the three counselors. Lupita Wiggins ("Wiggins") was Sinclair's guidance director at Northeast. Before school started, Wiggins asked Sinclair if there were any areas she needed help with and Sinclair requested training in TERMS. Wiggins met with Sinclair at her home and went over TERMS with Sinclair. Wiggins also trained Sinclair about high school graduation requirements since Sinclair had previously worked in guidance at middle schools. Sinclair did not show up to work the first two weeks of school. When she reported to work, Wiggins started noticing that Sinclair was having difficulty in scheduling. In November 2010, Wiggins discovered Sinclair still had not moved the ESOL students from Mercier's class, which she should have completed near the beginning of the year. On January 4, 2011, Wiggins reviewed the process for scheduling students properly with Sinclair again. On January 21, 2011, Sinclair incorrectly scheduled Term 8 courses for Term 9. Sinclair never mastered TERMS and continued to make mistakes such as: placing students in the wrong classes for the wrong quarters, which caused teachers' rosters to be missing students; placing a freshman student in a 10th grade biology class; double booking a student; and placing a non-ESOL student in an ESOL writing class. On January 21, 2011, Wiggins requested a list of ninth graders who had below a 2.0 GPA. Sinclair provided Wiggins a list of seniors who either had been in Apex3/ and were rejected or already scheduled for Apex. Wiggins worked with Sinclair to try to help her understand how to schedule properly and spent over two hours explaining to Sinclair again how to look at the students' credits to determine the courses that they needed. On January 25, 2011, Sinclair supplied another wrong class in Apex by not providing the classes for fourth or second period Apex classes. On February 24, 2011, Sinclair made another scheduling error and the terms did not match up. Sinclair also scheduled one student for American History as a needed graduation requirement, but removed her out of another class needed as a graduation requirement. Wiggins sat down with Sinclair countless times to try to teach her how to schedule students properly. Sinclair continued to make huge errors. On March 9, 2011, Sinclair improperly removed a student out of Spanish II, the second part of the two-year foreign language mandatory requirement to go to a four-year university, and told the student she needed Geometry in the second semester for graduation. The student already had all of her credits for math. On March 28, 2011, Sinclair still had not fixed the TERMS scheduling error brought to her attention by Wiggins on February 24, 2011. Wiggins had to constantly go back and double-check and recheck Sinclair's work, as well as fix it or do it herself. Wiggins also received complaints from parents that Sinclair was being unprofessional and disrespectful. 2011-2012 School Year In the 2011-2012 school year, Sinclair returned to Northeast where her performance issues continued. On or about August 26, 2011, Sinclair was notified of five ninth grade students who she did not place in the appropriate reading class, and Sinclair was instructed to correct the scheduling. Subsequently, Wiggins checked the five students' statuses and Sinclair had only changed one student's status, which was still an incorrect placement. From September 12 to October 7, 2011, Wiggins reviewed Sinclair's senior letters. Thirty-five of them had erroneous information. One letter told a student he was on target for graduation and not on target at the same time. In another letter Sinclair detailed a meeting with a student, who had withdrawn two weeks prior to the meeting date. Sinclair continued to fail to perform her counseling duties. She was still unable to use TERMS, continued to improperly schedule classes for students, and could not evaluate transcripts. She even failed to assign students to core classes. On or about November 29, 2011, Sinclair went out on FMLA through January 3, 2011. Alvarez noted in her doctor's note that she needed to rest. Jonathan Williams became the principal at Northeast and decided to develop a PDP to address Sinclair's ineptitude. On April 24, 2012, Allan Thompson, assistant principal, notified Sinclair by memo that she had been absent since April 19, 2012, and he was unable to write her PDP. Therefore, the meeting was being rescheduled for April 30, 2012, "for the purpose of writing your PDP." Sinclair did not return to work on April 9, 2012, as scheduled. Instead, Sinclair applied for a leave of absence. Principal Williams signed the request but noted that he was in the process of developing a PDP for Sinclair. Sinclair's leave was approved and she was absent from April 9, 2012, through May 9, 2012. Sinclair requested another hardship transfer to another school while out on leave. The transfer was denied. A conference was scheduled with Sinclair to write the PDP on May 11, 2012, but at 7:00 p.m. on May 9, 2012, Sinclair wrote an email stating "due to illness, I will not be in until next week." Sinclair never returned to work in time to write the PDP and she did not receive an evaluation for the 2011-2012 school year because of her days on leave: she did not meet the minimum requirements to get an evaluation. 2012-2013 School Year Sinclair took personal leave for the 2012-2013 school year. Her request stated her reason was "to care for my 88 year old Aunt who is dependent on me for everything. She recently had a fall and is declining health." Sinclair did not receive an evaluation rating for the 2012-2013 school year because she was not in attendance and/or actively teaching one day more than half of the school year, which is the minimum requirement to be evaluated. 2013-2014 School Year In August 2013, Respondent came off leave from Northeast and was placed at Western High School ("Western") because an opening was available after a guidance counselor retired. Principal Jimmy Arrojo ("Arrojo"), assigned her to the ninth grade students since she had previously been a guidance counselor over ninth grade students. On August 7, 2013, Arrojo first met with Sinclair and treated the meeting as an entry interview trying to get to know Sinclair and transition her comfortably into her new position. Sinclair did inform Arrojo that she had previously been placed on a cycle of assistance. Arrojo explained to Sinclair that her job duties included counseling students, scheduling, reading transcripts, placement of students, dealing with problems that may occur, talking with parents, and setting up parent conferences. During the initial meeting, Arrojo provided Sinclair a list of immediate assignments due August 16, 2013. He instructed Sinclair to find the incoming ninth graders at risk report, look up ninth grade graduation requirements, and review her job description and highlight any areas where she thought she might have issues. Lauren Cohen ("Cohen"), Western's school counselor director, was Sinclair's supervisor assigned to guide Sinclair through guidance including registration, evaluating transcripts, and scheduling. In October 2013, Cohen started receiving emails and phone calls from parents requesting a counselor change from Sinclair. Parents would request verification of information Sinclair provided and other parents would report that Sinclair had not responded to them. Mary Jones ("Jones"), assistant principal over the guidance department, also became concerned with Sinclair's performance as a guidance counselor because Sinclair generated numerous complaints from parents and was making mistakes. Jones decided to provide Sinclair extra help to improve her work performance. Sinclair made numerous scheduling errors, improper class placements, as well as calculated incorrect grades and credits for the students assigned to her. Sinclair's errors and failures exposed her students to graduation mishaps. Sinclair also had attendance issues and Arrojo had several informal conversations with Sinclair to help her improve her performance. On December 19, 2013, a mid-year review meeting was held with Sinclair, Cohen and Jones. Sinclair's weaknesses with scheduling, including her inability to schedule students with TERMS, incorrect grades, discipline records, graduation requirements, and credits, were discussed with Sinclair during the meeting. Sinclair's failure and inability to perform her duties continued into 2014. Sinclair was still providing incorrect information to students, placing students in the wrong classes, and improperly evaluating transcripts. The School Board evaluates employee's performances with the Broward Instructional Developments and Growth Evaluation ("BrIDGES") system. The School Board uses iObservation to maintain the observation data. BrIDGES is mutually agreed upon by the School Board and Broward Teachers Union. BrIDGES has an evaluation tool for guidance counselors in sections J through R, which evaluates their day-to-day interactions and responsibilities. During evaluation observations, administrators record ratings based on numeric values that are averaged out based on the calculations that have been determined in the District. There are five different ratings based off of what is observed. Each rating has a numeric value. Innovating is worth 4 points, applying is worth 3 points, developing is worth 2.5 points, beginning is 2 points, and not using is 1 point. The points are averaged to come up with the Instructional Practice Score. Jones was trained on BrIGDES and iObservations. On February 22, 2014, Jones observed Sinclair's day to day activity. She also evaluated Sinclair's interaction with colleagues. Jones rated Sinclair beginning. On March 11, 2014, Jones conducted a meeting observation of Sinclair with an incoming ninth grade registration. During the meeting, instead of properly guiding the student and showing the student the course on the course card, Sinclair asked the student to find the course. Jones rated Sinclair beginning for the interaction since Sinclair did not demonstrate she knew how to map courses on the course card as she had been previously instructed and trained. On April 7, 2014, Jones was dissatisfied with Sinclair's timing and methods used to communicate information skills and rated Sinclair with beginning in the category of promoting positive interactions with students and parents for a classroom incident. The rating was for a parent meeting Sinclair had. She interrupted the instructional flow of the classroom and put a teacher on the spot by calling her during class and questioning her about the student instead of taking a message and facilitating communication between teacher and parent later. On or about April 9, 2014, Jones conducted a 30-minute formal observation of Sinclair's registration of a new ESE student. Sinclair showed up 30 minutes late to the scheduled conference and provided incorrect information about the course and credit. Jones rated Sinclair beginning for the observation because of the errors. On May 1, 2014, Jones assessed Sinclair's evaluation category for collegiality and professionalism, domain 4, and noted that Sinclair "identified ESE student and his needs during registration." She gave her a score of developing. Sinclair's performance as a guidance counselor at Western went up and down. Sometimes she did what was needed to be done. And, more often than not she scheduled students inappropriately. When Jones met with Sinclair to review issues, she would just stare at Jones and not provide an answer to her questions even if prompted and asked a direct question. Sinclair would reply with silence or reply "I don't recall." After her observations for the 2013-2014 school year, Sinclair ended up with an Instructional Practice Score 2.335, which showed she needed improvement. 2014-2015 School Year Sinclair started off the 2014-2015 school year needing to improve her Instructional Practice Score. The District provides support for employees with performance concerns. Tanya Thompson ("Thompson"), evaluation coordinator for the District, was assigned to Western to coordinate support for employees that receive a less-than- effective annual evaluation. Thompson's job is to provide assistance in rectifying the employee's performance deficiencies. Thompson started to assign Sinclair Nardia Corridon ("Corridon") as her fall peer reviewer to provide extra help and coaching, which would improve Sinclair's performance to the District level. However, Sinclair requested that she not get Corridon as her peer reviewer. For the 2014-2015 school year, Cohen oversaw the guidance department and met with all the guidance counselors periodically to address processes and issues. When Sinclair did not grasp the guidance counseling processes, Cohen started working one-on-one with her to explain and show her how each counseling duty should be done. Thompson assigned Gisella Suarez ("Suarez"), to Sinclair from the District as her peer reviewer after Sinclair notified Thompson she did not want Corridon. Suarez was assigned to coach Sinclair and help enhance her job performance. She did not serve as part of the assessment procedure or evaluation process for Sinclair. Even though Sinclair had a weekly peer reviewer, Cohen continued to provide Sinclair school-based support including extra meetings, and making sure that she sat down with her often to go over the different aspects of the counseling job including addressing parent concerns, following protocol for test materials, registering students, evaluating transcripts, scheduling, placing students, and Response to Intervention ("RtI).4/ Cohen documented her support meetings with Sinclair in coaching logs dated August 11, 13, 14, 22, 26, 28, 2014, September 2, 5, 9, 2014, October 29, 2014, November 4, 2014, and December 11, 12, 2014. On August 22, 2014, Suarez started coaching Sinclair and also documented her training sessions by coaching logs each time she met with her. When Sinclair met with Suarez, she shared her final evaluation from the previous year. Suarez used the evaluation to develop the session topics for coaching Sinclair. Suarez met with Sinclair weekly and focused her coaching sessions on all the areas of concern from Sinclair's evaluation. Suarez coached Sinclair on areas such as: contacting and communicating with parents, teachers, and students; facilitating educational planning in her office; and using counseling technology to help look up data on students. On or about August 28, 2014, Sinclair erroneously overrode the system and allowed a student to register for a higher math class because the parent wanted the student in the class. Sinclair should have verified that the class was appropriate by accessing the student's transcript or had the student tested before placing the student in a higher level math class. During the coaching sessions, Suarez would provide Sinclair additional resources to look at or ask her to log on to a database or go to a website. Repeatedly Sinclair did not follow through with the assistance and would inform Suarez that she did not have time. On or about August 31, 2014, the counselors were handling incoming registrations for private school transfers and middle school transfers prior to the start of the school year. Sinclair was not performing her share of registrations because she was not able to get into TERMS for a day and a half. Sinclair had to have her password reset. Jones rated her beginning for waiting a day and a half to gain access to the main working database, TERMS, and have access to check students schedules or appropriately place students. On September 9, 2014, Cohen reviewed RtI with Sinclair and showed her the website for the prevention office and all resources. They reviewed the use of technology on iObservation. Cohen also instructed Sinclair not to blame other counselors when working as a team. Cohen continued to receive numerous complaints about Sinclair not returning emails and phone calls to parents. While observing Sinclair, Suarez would also provide her feedback and suggestions to improve her interactions when she met with parents. Sinclair was generally receptive. However, Sinclair did not follow through with Suarez's suggestions. Sinclair struggled remembering her password to access BASIS, the web based guidance counselors' database to obtain the information for students. On October 6, 2014, Jones conducted a 30 minute formal observation during Sinclair's registration of a foreign student. Sinclair conversed with the student's uncle from the beginning of the meeting to the end about the student's registration without including or interacting with the student. Instead of letting the uncle convey the information to the niece and making her a part of the conversation, Sinclair repeatedly told the uncle, "you can talk to her about this tonight." Jones ultimately interceded in the meeting and pulled up InfoCat, a database utilized to identify foreign speaking students, to pair the new student with a student on campus that spoke the same home language and help transition the student. While coaching Sinclair, Suarez accessed Sinclair's skills with RtI and determined that she could not even go into the database even though she had been a counselor for over four years. Since Sinclair was responsible for RtI, Suarez provided Sinclair a Brainshark webinar from the District's counseling department to assist her in becoming proficient on RtI. The tool detailed the RtI process and included training on how to get on the system, initiate referrals, maintain data on interventions, and how to input information. On October 8, 2014, Suarez suggested that Sinclair register for the District RtI additional training. Sinclair attended the training. On October 10, 2015, Suarez met with Sinclair and used her coaching period with her to view the Brainshark RtI webinar since Sinclair still had not viewed it on her own time although Suarez had suggested it previously. Suarez had to log on to Brainshark because Sinclair could not access it. After the District RtI training and webinar training, Sinclair still struggled with RtI. She was still only able to get on RtI one time independently while with Suarez and continued to forget her password, although she would write her password down, and how to get on the system. On October 27, 2015, Jones observed Sinclair performing domains 2 through 4 and rated Sinclair developing because she did what she was supposed to do. On October 29, 2014, Cohen reviewed transcripts and test codes with Sinclair. Cohen met with Sinclair and went through the process and trained Sinclair again on how to enter grades and what assessment codes to use on a grade transcription sheet. When coaching Sinclair, Cohen had to repeat most topics multiple times. On November 3, 2014, Suarez and Sinclair watched a BASIS webinar to improve Sinclair's performance with BASIS. Sinclair took notes. Suarez also coached Sinclair on Virtual Counselor, a simple web-based program the District has where students, including middle school aged students, teachers and parents have access to student's grades and attendance. Sinclair also struggled with getting into Virtual Counselor and using the system. On November 20, 2014, Jones decided that it was about halfway through the school year so she would conduct an informal observation to see how Sinclair was doing. On December 11, 2014, Cohen met with Sinclair to review the previous assignment to put together a one page sheet with everything a ninth grader would need to know about semester grades including GPA, exams, and end-of-course classes ("EOC"). Sinclair's product did not contain the requested information and when asked to explain the document Sinclair could not explain it to Cohen. Cohen went over the components again and Sinclair took notes. Cohen ended the meeting by quizzing Sinclair. Cohen asked Sinclair if a student passed the nine weeks but failed the exam would they get credit. Sinclair looked at Cohen and would not answer. After being asked three times, Sinclair said no, which was the wrong answer. Cohen explained that Sinclair needed to learn, understand, and master how credits worked as part of her counseling job and she needed to be able to explain it to students properly. On December 12, 2014, Jones and Derek Gordon had a meeting with Sinclair and provided her a summary memo informing her that there were concerns with her job performance and a possible professional growth plan would be implemented. Jones summarized Sinclair's performance of November 20, 2014, informal meeting in the memo. Jones also rated Sinclair as not using for area L; beginning for area M; and not using for area N. The Post Observation Summary memo which stated: There was little interaction with parents during the parent meeting Resources were not provided to the parents No conclusions were drawn or action plan created following conference Based on my observation, I am concerned about your performance. I stated that I would provide you with assistance in order to assist you in improving your performance. I also encouraged you to continue working with your Peer Reviewer, Ms. Suarez. I also have had the opportunity to conduct observations this year. Based on those observations, a rating of beginning or not using have been given in the following elements: Use of Available Technology Participating in District and School Initiatives Supporting and organizing the Physical Layout of the Session Room Collecting and Analyzing Data to Develop and Implement Interventions Within a problem- Solving Framework Know and understand that if these deficiencies are not remediated, you may need to be placed on a Performance Development Plan. On December 12, 2014, Suarez also attempted to meet with Sinclair for their next weekly coaching session. Suarez's plan for the session was to review RtI again and to look at some technology resources for students. Sinclair did not respond to Suarez while she was in the office and finally stood up and opened the door showing Suarez out after approximately 20 minutes. Suarez responded requesting a date for their next coaching meeting the following week. Sinclair informed her she would get back to her. On January 8, 2015, Sinclair left Suarez a voicemail on her cellphone saying that she did not believe she needed her support any further. On January 9, 2015, Jones provided Sinclair a January 14, 2015, meeting agenda which listed topics to be addressed at the meeting, including at risk students, failing ninth grade students, RtI, goal-setting with ninth graders, transcript evaluation, and appropriate placement for scheduling. The email requested Sinclair to "please be sure to come prepared with a list of ninth grade students who have failed the first semester." On or about January 13, 2015, Arrojo met with Sinclair and addressed her attendance. He pointed out she had been absent 13 days and it was only halfway through the school year. He also informed her that she only had less than a day of sick leave left. Arrojo further explained that Sinclair had a pattern of non-attendance because most of the absences were tied to days off, a weekend or a vacation.5/ Arrojo questioned Sinclair about the absences four times and she did not respond or answer. Finally, Arrojo directed Sinclair to report to work on a daily basis and explained that Sinclair's numerous absences as guidance counselor caused problems for the guidance department because unlike a teacher who has a substitute replacement, the other guidance counselors had to pick up Sinclair's work when she was out. On January 13, 2015, Jones also sent Sinclair an email rescheduling the meeting time for January 14, 2015, at 1:30 p.m. On that same day, Sinclair incorrectly added classes for a student in Term 1 when it was second semester Term 2, and the student should have been added to Term 2. Each of the student's classes Sinclair scheduled started with a "1" which represents Term 1 instead of "2", which represents Term 2. On January 14, 2015, Sinclair reported to the meeting with the administrators at 1:30 p.m. and then excused herself to the restroom, came back at 1:45 p.m. and refused to answer any questions without a union representative. After she conferred with the union representative, the meeting began at 1:55 p.m. At the meeting on January 14, 2015, Arrojo observed. Jones requested that Sinclair provide the list of ninth grade at risk students that she had asked for previously on multiple occasions and instructed Sinclair to bring to the meeting for review. Sinclair refused to show the administrators the documentation she was holding in her hands or turn it over for review. It was explained to Sinclair that an accurate compilation of at risk students is important in order to determine which students out of the approximate 800 freshmen need extra help to graduate because credits are lacking, a low GPA, attendance issues, or discipline issues. Sinclair's previous reports on at risk students had varied from 21 to as large as 100. Jones had requested a copy of the list Sinclair was working off to review it for accuracy of criteria and properly identify the at risk students that needed plans formulated to help them. Sinclair would not respond to Jones several requests for the list even after she asked her directly. Sinclair just stared at the administrators with no response. Sinclair finally said 100 plus students were on the at risk list. Jones asked for the list a third time and Sinclair did not hand her the list. Jones asked Sinclair did she look on BASIS, the computer database that contains student data, including a tool that compiles list by areas at risk. Sinclair continued to stare blankly at Jones and not answer her. At some point in the meeting, Sinclair finally asked Jones, "does it matter what list?" Jones explained, "Yes, because on BASIS there's only 12 students and you're saying there's a hundred plus students." During the meeting, Jones tried to get Sinclair to open BASIS to look up the list. Sinclair was never able to open BASIS. Sinclair also failed to provide the strategies for at risk students or discuss interventions with Jones and Arrojo during the meeting. She just stared blankly at and through her supervisors. Sinclair never produced the list. At the end of the meeting Arrojo requested Sinclair leave the list that was in her hand but Sinclair just walked out. On January 14, 2015, Principal Arrojo also provided Sinclair a summary memo of the January 13, 2015, meeting and offered Sinclair employee assistance, which she refused. The memo provided expectations with the following directives: You are expected to report to work on a daily basis. This is an excessive amount of absences that has had an adverse impact on the operation of our school be reminded that attendance is an essential function of your job. All future absences will require you to provide a doctor's note verifying that you were ill. However, providing a doctor's note does not excuse an absence for which you have no accumulated sick leave. In order to try to prevent any students from falling through the cracks, Jones personally took the time to create the at risk list and discovered only 15 students were on the failure at risk list, not the 100 Sinclair claimed. On January 16, 2015, Sinclair received a pre- disciplinary meeting notice regarding insubordination. The letter detailed that Sinclair: refused to adhere to My directive to provide the list of at risk and failing 9th grade students that I requested and you refused to respond to inquiries regarding these students at a meeting held in Assistant Principal Ms. Missy Jones' office on January 14, 2015. During this pre- disciplinary meeting we will discuss your insubordination and failure to respond to inquiries regarding your students and your failure to turn in requested documentation. Prior to being placed on PDP Sinclair was provided District based support to see if her deficiencies could be corrected and job duties could be performed at an acceptable level. She received counseling notes, meetings with the guidance director, peer reviewer, and assistant principal. However, Sinclair was still repeating mistakes, not grasping basic guidance functions, making errors and not making progress with all of the support given. On January 23, 2015, Arrojo provided Sinclair a notice for a January 28, 2015, at 9:00 a.m. meeting "for the purpose of writing your Performance Development Plan." On January 28, 2015, Sinclair reported to Western. Arrojo was waiting for her in his office to meet and she left the school grounds around 8:00 a.m. Sinclair's union representative showed up for the meeting and was not aware Sinclair had left the school premises. On January 28, 2015, a memo was provided to Sinclair from the pre-disciplinary meeting held on January 23, 2015, which stated: [R]efused to respond to inquiries regarding your students and your refusal to turn in requested documentation, I have decided to issue you a Verbal Reprimand. Effective immediately, you are to fully answer all inquiries and you will provide an/all requested documentation from your supervising administrator/s. That same day, Arrojo wrote Sinclair another meeting notice, which she ultimately refused to sign, directing Sinclair to report to his office February 2, 2015, at 1:00 p.m. for the purpose of writing her PDP. Sinclair called out on February 2, 2015. On January 29, 2015, a transfer of support meeting was held. Sinclair requested Corridon to be her peer reviewer instead of Suarez because she had a guidance counselor background. Corridon met with Sinclair and discussed the areas of support needed. On February 2, 2015, Arrojo wrote Sinclair a third meeting notice in an attempt to set up a meeting on February 5, 2015, at 12:30 p.m. for the purpose of writing her PDP. On February 5, 2015, a PDP was created for Sinclair. Sinclair was informed that her Instructional Practice Score was 1.898, in the unsatisfactory range. Sinclair was given a 90-day probationary period letter, which stated "failure or refusal to remediate all areas identified as deficient would be less than effective BrIDGES evaluation and/or termination of contract." The PDP highlighted Sinclair's performance concerns, which included but were not limited to the following: failing to systematically tract academic progress of students who were in danger of failing; inability to get participants to record and represent the exchange of information from interactions with the counselor; inability to consistently access and utilize technology to enhance the quality of services; inability to develop or articulate interventions or providing counseling to develop effective behaviors; and failure to collect and analyze data to develop interventions with the RtI framework. On February 6, 2015, Corridon, the second peer reviewer, started coaching Sinclair twice a week. She reviewed and provided assistance in all the areas Sinclair made an unsatisfactory rating on the PDP. On February 9, 2015, Jones emailed Sinclair to instruct her to read Policy 6000.1, and a meeting would be set soon to discuss the policy. Corridon spent coaching sessions going over and over the same areas of assistance with Sinclair. Sinclair would often forget her password, after writing it down. Corridon went over the RtI process manually and the next time Corridon reviewed it with Sinclair, Sinclair was not be able to follow through the RtI process independently. Sinclair did not demonstrate any consistency and there was not much effectiveness in terms of improvement with regards to performance. After Sinclair was placed on PDP, observations continued to ascertain the status of her work performance and progress. Jones observed Sinclair on March 5, 2015, March 8, 2015, March 30, 2015, April 9, 2015, May 1, 2015, and May 8, 2015. Arrojo observed Sinclair on March 3, 2015, March 9, 2015, March 19, 2015, and April 14, 2015. During the observations, Sinclair consistently continued to make numerous mistakes and rarely was capable of performing her job successfully. As a guidance counselor, Sinclair had an office to work from, was provided the opportunity to attend regular guidance department meetings with the other guidance counselors, sit in on plan reviews, schedule reviews, and share other counselor information together. Even so, Sinclair continued to commit constant errors repeatedly. She did not improve and her mistakes endangered the students' graduation timelines, college entrance opportunities, as well as scholarships. Additionally, she put undue strain on the guidance department by having the other guidance counselors in the department stop their workload, pick up Sinclair's work to get it done or correct her errors. Numerous scheduling and transcript errors had to be corrected by the other staff. Sinclair showed minimal improvement and still could not put basic guidance counseling skills into practice. Instead, she repeated the errors even after extensive coaching and one-on-one training. On March 4, 2015, Western had an incoming ninth grade open house. The event is for incoming freshman and their parents from the middle schools to come and learn about Western. Sinclair failed to show up even though she was required to attend and she did not contact any one to let them know she would not be in attendance. Other guidance counselors had to step in and handle Sinclair's table for incoming freshmen. Sinclair never provided an excuse for her absence. Prior to the open house, Arrojo had informed Sinclair that he would be introducing her to the 1000+ visitors at the event. On March 8, 2015, Jones observed Sinclair and memorialized the observation in a post observation summary memo dated March 18, 2015. Sinclair provided 19 records for 11 students, of which only four were at risk, even though Jones had asked her yet again for the at risk students' list as she had been requesting since January. Sinclair was still not providing the at risk student list so that the intervention plans could be created and implemented to provide the services needed by the students. Jones also requested RtI records with the at risk list. The 19 records were all Sinclair supplied from August 2014 to March 8, 2015. At some point, Sinclair said over 100 students were at risk but she only brought four at risk student records to the meeting of March 8, 2015, not the requested list. Sinclair had very little documentation of her efforts to help the students. Sinclair also failed to be able to list or address the traits of Policy 6000.01 as requested on February 9, 2015. Additionally, when asked, Sinclair was unable to discuss quality points, the points provided for higher-level classes like AP that boost students GPA for graduation. Sinclair needed to comprehend and be able to explain quality points to parents and/or students to successfully perform her job. Sinclair only contacted 20 students in December and 63 in January according to her log. Jones determined the number was low since December is only two school weeks. Out of the 83 students contacted, Sinclair failed to address the need of improving one's GPA, which 520 of the ninth graders also needed her assistance with, as well as her providing them with information. By email on March 9, 2015, Corridon scheduled Sinclair to go to Cooper City High School ("Cooper City") on March 16, 2015, at 9:00 a.m. to shadow Clara Able ("Able"), a guidance counselor, so she could observe her day-to-day activities and be taught more counseling skills. On March 10, 2015, Jones emailed Sinclair and requested she provide additional documentation about some items discussed in the earlier March Policy 6000.1 meeting observation. Jones set a deadline of March 13, 2015. Jones requested the information so that she could properly rate Sinclair from the observation. Jones informed Sinclair that she could provide her more time if she could not have the documents ready by the 13th as requested: You mentioned that you call in students, call home to parents to provide tutoring information, etc. Please provide me with recent documentation that corroborates your outreach efforts. Examples of this could be L27 entries, list of targeted students, phone logs, examples of the tutoring services, etc. You mentioned you shared the Quality Points information with parents/students who come to your office. Please provide documentation of who has received this information and what exactly you share with them. At the meeting, Sinclair provided Jones incomplete L panels6/ and student sign in logs, which failed to have the sign out time for the students and incomplete. Out of the 18 contacts provided, Sinclair was only able to provide records for less than 10 students. The backup materials provided did not provide any details of discussions with students she had met with to utilize later for follow up or documentation. Jones reminded Sinclair during the meeting that she was available to help her if needed and even though she was receiving assistance from site-based coaches and a peer reviewer, there were still on-going concerns regarding her performance. By email on March 13, 2015, Jones scheduled a meeting with Sinclair on March 19, 2015. The email notified Sinclair that the meeting would cover RtI, student registration, and SBBC Policy 6000. The email instructed Sinclair, "As we will need to reference documentation on those topics during the meeting, the meeting will take place in your office. Please be ready to refer to items in your possession on the topics referenced above during our meeting." On March 16, 2015, Sinclair showed up approximately an hour and forty minutes late for her shadow session with Able. By the time Sinclair arrived Able, had left Cooper City and Sinclair did not get the counseling training. On March 17, 2015, Jones provided Sinclair a meeting notice to report to the principal's office on March 30, 2015, at 9:00 a.m. to review her PDP. On March 18, 2015, Arrojo hand-delivered a summary memo to Sinclair from the March 13, 2015, meeting, which stated: Middle school registration took place this week at Indian Ridge Middle School. You came to the middle school with the incorrect course cards. You arrived and placed the Grade 10-12 Course Selection sheets (green cards) on the desk to register the incoming freshmen or current 8th graders. Ms. Cohen, Guidance Director, told you those were the incorrect forms and supplied the correct ones to you (blue cards). The next day, you again brought the incorrect Grade 10- 12 Course Selection sheets and placed them on the desk for the incoming 9th grade students to use. Ms. Cohen, Guidance Director, again removed the forms from the desk and provided the correct ones for you. You were unable to start a testing session for the group of students you were proctoring on March 11, 2015. You were trained on protocols for testing administration on February 26th, 2015. You were a Testing Administrator in a session previously held on March 2, 2015. You reported to the computer-based testing session without your laptop on March 11, 2015. As Testing Administrator, your laptop was required in order to start the session and approve students to begin testing. You were searching for a session code in the bin to begin computer-based testing, unaware that one had to be created once you log in as the Testing Administrator. Ms. Cohen, Guidance Director had to log in as Testing Administrator for the session as you were unable to log in after multiple. On March 19, 2015, Arrojo, Jones, and D. Jones observed Sinclair. She was incapable of explaining how a student earns a credit. She confused semesters with nine weeks and included the EOC calculation percentages when explaining the general course calculations. Sinclair also failed to explain how to utilize the forgiveness rule. Sinclair did not have an understanding of how to use the tool to help students make up credit and replace or forgive a student's original bad grade, which helps improve the GPA of the student who failed. Jones scored her beginning for the meeting. During the meeting, Sinclair also displayed her typical responsive behavior to the administrator's questions. She stared blankly in response to pointed questions. Sinclair never provided the RtI list, even though she had been over RtI during the 2013-2014 school year. Ultimately, Arrojo had D. Jones pull the list and D. Jones took over RtI because Sinclair was incapable of performing the task. On March 20, 2015, Cohen met with Sinclair to follow up on the status of the transcripts that had been previously erroneously handled. Sinclair failed to have them corrected by the March 20, 2015, deadline. Cohen used the meeting to provide coaching on accurate future transcript evaluation. Cohen sat with Sinclair one-on-one and went through each folder and listed with her what needed to be done to award the students credit as well as provided examples. Cohen reminded Sinclair to indicate student name and student number, use designated colors to highlight grade level credit earned, and add appropriate assessment codes to EOC courses. During the coaching session, Cohen also pointed out transcript and registration errors. One such error discussed was Sinclair awarding half of a credit to a student when Dade County clearly stated the student was in Term 1 or Quarter 1 and the student could not have earned a credit yet. Cohen never received the requested transcripts. Cohen suggested Sinclair check her drawers for the missing transcripts and Sinclair became upset. The transcript information was not available to be entered into the system and students were not properly placed or were in statuses to miss credits for graduation. The guidance department also had to request transcripts from prior schools a second time because of Sinclair not supplying the transcripts. Sinclair's deficiencies in her performance as a guidance counselor continued almost on a daily basis. On March 30, 2015, a meeting was held to review Sinclair's PDP. Sinclair's Instructional Practice Score had improved minimally to 2.043, needs improvement. The meeting ended with Arrojo agreeing to continue to provide Sinclair observations and coaching in an attempt to help Sinclair improve her work performance. On April 2, 2015, a memo was written regarding the March 30, 2015, meeting outlining Sinclair's ongoing performance issues. The memo detailed the following observations: During the observation, Ms. Sinclair could not identify students that she was the case manager for and therefore, unable to provide strategies for improvement. Ms. Sinclair was able to log in to Virtual Counselor but was not familiar with the RtI layout in Virtual Counselor. During the observation, Ms. Sinclair continued to click on the screen hoping to navigate through the website. Mr. Sinclair was unable to describe how a student earn a credit. In speaking, Ms. Sinclair included the EOC calculation percentages while explaining the general course calculations. On April 7, 2015, Jones conducted a formal observation meeting with Sinclair. A new student from a private school was being registered and enrolling as an incoming ninth grader. Sinclair showed up 15 minutes late without any explanation or apology for tardiness. Sinclair recommended four out of the six classes that were closed to the student. The four classes were all on the closed class list Sinclair had been provided both by a printed copy on April 6, 2015, and emailed on March 30, 2015. After the registration observation, Jones asked Sinclair for the closed class list provided to her. Sinclair had it taped to her desk but she did not use it when registering the student. Jones asked Sinclair to tell her which classes she had recommended to the parent and she could not answer. Sinclair also could not find the student's name in Virtual Counselor. Sinclair's work continued to be unsatisfactory because she failed to competently perform her duties as a guidance counselor; failed to communicate appropriately with students, colleagues, administrators and parents, which caused numerous complaints; stared and refused to acknowledge conversations with administrators; failed to have command of her area of specialization as guidance counselor with the repeated errors. Additionally, she made the same mistakes over and over and did not show improvement or competency. On April 9, 2015, Corridon provided Sinclair's last coaching session. In April, Jones was still trying to get the list from Sinclair of students who failed the first semester even though it was late in the year to start addressing the struggles of failing students. On April 28, 2015, Jones conducted a formal observation and requested Sinclair go through the process of creating a referral in RtI. Sinclair was able to login to the referral database but clicked from screen to screen, unable to either navigate the database properly or record key information. Sinclair also failed to navigate resource sites necessary to provide students resources for assistance. Jones rated Sinclair a beginning for the exercise. On May 1, 2015, a post observation conference was held with Sinclair to discuss the observation of April 22, 2015. Sinclair, David Olafson, and Jones attended. Jones shared the findings from the Marzano observation system, which Sinclair obtained beginning/not using datamarks in design question 2, element 12 and elements M and Q. Specifically, Jones documented the following observations in the memo: Lack of familiarity with the BASIS database when entering students and other pertinent information. The counselor advises students to visit certain websites to begin to do better in school. The students receive no handout with key points or an overview of what the website offers. The counselor does not diversity the resources offered to students in danger of failing and the do not address they students deficiencies. Students in danger of failing were expected to create their own plan for success. Some students have been in danger for failing all year and were not seen until April 2015. On May 6, 2015, a meeting observation for domains 2 through 4 was conducted. Sinclair was asked to pull up the presentation she used for incoming freshmen to discuss graduation requirements. She was not able to find the document after multiple tries. On May 8, 2015, a post observation conference was held to discuss the results of the 30-minute observation held on May 6, 2015. Jones outlined Sinclair's ongoing performance concerns and numerous errors, as well as improper actions, which included Sinclair: improperly inputting 21 out of 38 transcripts reviewed; failing to monitor and assist three students in danger of failing by only meeting with each of them one time in April; failing to review the TERMS panels with each student along with Virtual Counselor; failing to assess the student's deficiencies incorrectly so was unable to offer additional services to the student, which impacted student's placement and graduation status; failing to look at two student's L panels to review their history and help develop the direction to proceed; and failing to provide services to a student who indicated problems at home. That same day Jones notified Sinclair to report to the principal's office on May 15, 2015, for the final review of PDP. On May 15, 2015, Sinclair's final review was conducted. She never was able to perform the basic functions of counseling. Sinclair failed to do the job and her ineptitude continued throughout the PDP process. Sinclair's final Instructional Practice Score was 1.974, unsatisfactory. As a result, Arrojo recommended Sinclair for termination based on her failure to correct her performance deficiencies during a 90-day PDP. After Sinclair left Western, the missing transcripts Cohen had requested from Sinclair and instructed her to look for were found in Sinclair's office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order: dismissing the charge of violation of rules 6A- 5.056(2)(a); finding Respondent in violation of rule 6A-5.056(2)(b), (c), (d), and (e); rule 6A-5.056(3); sections 1012.33, 1012.53(1) and (2); and School Board Policy 4008(B). upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 10th day of March, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 10th day of March, 2017.
The Issue The issues are whether Respondent is guilty of incompetency, misconduct in office, or insubordination and, if so, whether Petitioner may suspend her without pay for 13 days.
Findings Of Fact Respondent has been employed by Petitioner for 26 years, but not for the period of 1997-2007. For the most part, Respondent has served as a classroom reading teacher, but she has also served as a district-level behavior specialist over ten years ago. Starting in the 2006-07 school year and through the 2011-12 school year, Respondent has been assigned as a tenth grade reading teacher at Blanche Ely High School. Respondent has never received any discipline on her educator's certificate. Until the 2011-12 school year, Respondent had never received any adverse employment action from Petitioner. All of her evaluations during her tenure at Blanche Ely bore satisfactory marks. For the first two years after Respondent returned to teaching in Petitioner's schools, she was on annual contract, but she regained a professional service contract starting the 2008-09 school year. Ms. Baugh's first year as assistant principal at Blanche Ely was the 2011-12 school year. Ms. Baugh previously served as assistant principal at Deerfield Beach High School and, before that, served for seven years as a classroom reading and English teacher. Among Ms. Baugh's responsibilities at Blanche Ely during the 2011-12 school year was to supervise the reading and English departments. Ms. Baugh was thus Respondent's direct administrator. Ms. Baugh's first observation of Respondent's class took place on September 28, 2011. Ms. Baugh remained in the classroom for 30 minutes. Ms. Baugh observed deficiencies in three areas. First, as to instructional planning, Respondent had failed to write the learning objectives on the board, so the students lacked a clear understanding of what they were supposed to learn from the lesson. By failing to introduce the students to the material properly, Respondent allowed students to become confused as to their tasks in reading an interview in a textbook. Lastly, Respondent broke the class into pairs to write an interview, without first providing an example of how to write an interview or giving the students a chance to practice the task, and some students did not understand their respective roles in the small groups. Second, as to lesson presentation, only a few students engaged in an assigned activity because Respondent had failed to provide pre-reading assignments or to explain the purpose of the reading assignment. In reviewing an activity in which students were to determine their areas of weakness, Respondent asked three students to share their three most common mistakes, but failed to determine whether the students actually knew their areas of weakness. Lastly, Respondent failed to write on the board the vocabulary, learning objectives, and specific tasks for the lesson. Third, as to subject-matter knowledge, Respondent consistently misidentified the FCAT 2.0 Reading Category Four as "Informational Text and Technology." It is "Information Text/Research Process." Respondent did not resist Ms. Baugh's comments during the post-observation conference, which took place on October 3, 2011, although Respondent incorrectly insisted that the FCAT section to which she had referred would cover technology. During the conference, Ms. Baugh informed Respondent that she would receive assistance in instructional planning, lesson presentation, and subject-matter knowledge. Ms. Baugh warned Respondent that she would be placed on a Performance Development Plan, if she failed to remediate these deficiencies. One day within two weeks of the October 3 conference, Respondent was instructing her class when a student asked a completely off-topic question about sex. Unable to regain control of the class, Respondent floundered, and other students seized the opportunity to ask inappropriate questions. In the ensuing verbal melee, answering questions posed to her, Respondent told the students that she first had had sex in college and it had been physically painful. As surprising as Respondent's lapse in judgment in answering these questions about her personal sex life, her explanations for why she did so were even more surprising. When asked during cross-examination why she would answer such obviously impertinent questions, Respondent twice, sitting silently, responded by snapping her fingers repeatedly. As though she were overwhelmed by the attorney's question, Respondent resorted to this gesture to indicate that the rapid- fire questions themselves had overwhelmed her. When finally coaxed to substitute language for gesture, Respondent lamely explained that a teacher cannot ever be viewed as inappropriate when she is honest with a child. After a conference on October 22, during which Respondent denied having made any sexual comments in class, Ms. Baugh informed Respondent, somewhat cryptically, "to no longer engage in nonacademic discourse and off-topic discussion by desisting students' negative behaviors." Doubtlessly, though, Respondent understood that she was not to do this again. Ms. Baugh's second observation of Respondent's class took place on November 9, 2011. As Ms. Baugh entered the class, the students were loudly demanding to know what they were supposed to be doing in class. In response to one student, Respondent replied that they should write the words on the overhead projector. The lesson was devoted to acquiring vocabulary through morphemes. While students were working on the lesson, a loud dialog took place between a student sitting near Ms. Baugh and another student sitting across the classroom. Their comments included profanity and disparaging remarks, including one statement referring to the boy on the other side of the classroom as "fat boy." Other students were leaving the classroom, some with and some without passes. Still other students were laughing and talking. Few students were doing the assigned work, but Respondent never intervened. When later asked why she had not intervened, Respondent told Ms. Baugh she did not want the behaviors to worsen and the situation to escalate. After working on the morphemes assignment, the students turned their divided attention to another assignment. Respondent neither explained the purpose of the new activity, nor did she introduce the new activity to the students. Instead, Respondent told the students merely to turn to a certain page and begin to work. Ms. Baugh observed deficiencies in instructional planning, lesson presentation, and behavior management. As to the last, Ms. Baugh told Respondent to stop negative behaviors and impose consequences for misbehavior. By this time, Respondent was receiving assistance from Ms. Powell, another reading teacher, and a retired principal. Later, Ms. Baugh assigned a second reading coach to try to help Respondent. Ms. Powell actually had started helping Respondent in 2009, at least in group sessions given for the benefit of all of the reading teachers. Clearly, though, by the 2011-12 school year, Ms. Powell was providing much more in-depth, individual assistance to Respondent. For instance, following an observation on October 28, Ms. Powell provided Respondent with a detailed Teacher Support Narrative. As to one observation, Ms. Powell noted how Respondent's board was cluttered, bore incorrect lesson objectives, and reflected the use of obsolete student-grouping criteria. Ms. Powell told Respondent to visit the classrooms of three other teachers to see how a board should be organized. But, by their next meeting, Respondent had not done so. Increasingly, though, Respondent was losing control of her classroom. Nearby teachers would enter Respondent's classroom to try to help restore order. Respondent later explained that she did not summon security because she had done so on a couple of occasions early in the school year, but security had never responded. On at least two or three occasions, when a student swore openly in class, Respondent's "strategy" was to repeat the word, in asking what he had said, such as "did you say 'fuck?' or "did you say 'bitch?'" Predictably, the effect of the teacher's repeating the swear word did not de-escalate the situation. On December 12, 2011, one student repeatedly directed a profanity toward Respondent in class and then seized Respondent's personal computer to access a grade program to change his grade. When the other students became disruptive too, another teacher had to enter the classroom to restore order. Because Respondent had not contacted security, the other teacher did so. Eventually, Respondent issued a referral only for the profanity, not the seizing of the computer, although this act compromised confidential information of other students. By letter dated January 17, 2012, Ms. Baugh issued Respondent a written reprimand for failing to manage the behavior of her students and allowing an unsafe learning environment to ensue. Ms. Powell witnessed the aftermath of a more serious incident that took place on December 15 in Respondent's classroom. At the start of class, a boy struck a girl in the head with a bottle. Although Respondent wrote a referral on the boy, she allowed both students to remain in the class for the duration of the period. As Ms. Powell entered the classroom, the period had evidently just ended, and the boy had just left the classroom, but she saw the girl, crying, on her cellphone talking to someone. She was asking the person with whom she had called to come to school to pick her up because a boy was bothering her, and her teacher was not doing anything about it. Instead of comforting the child, Respondent was busily walking around the classroom picking up papers. In response to questions from Ms. Powell, Respondent confirmed what had happened. When Ms. Powell asked if Respondent had called security, she said she had not because she was straightening up the room. Respondent then told the girl to proceed to her next class, but Ms. Powell told her not to leave the safety of the classroom until they knew the location of the boy. The girl left the classroom anyway, and Ms. Powell trailed her to make sure that the boy did not approach her. Just at that moment, the security guard arrived, so Ms. Powell could return to the classroom and admonish Respondent for, among other things, cleaning up the room before addressing the needs of the student who had been struck by the bottle. Later, in a conference, Respondent told Ms. Baugh that she had not called security because the fight had taken place just outside her classroom. Respondent added that she also knew that the boy did not bother girls, only other boys. Unmoved by Respondent's so-called explanations, by letter also dated January 17, 2012, Ms. Baugh issued a written reprimand for Respondent's failure to make a reasonable effort to protect a student from conditions harmful to her health or safety. Ms. Baugh's third observation of Respondent's class took place on January 5. The observation generally noted the same deficiencies as had been noted in the preceding two observations. This time, students laid their heads on their tables, and Respondent did not make them pay attention. The classroom was noisy, as students laughed and talked without being redirected. Two students even had headphones over their ears. When later asked about these matters, Respondent told Ms. Baugh that she did not address these behaviors because she did not want to delay instructional momentum. As was the case with the second observation, Ms. Baugh noted deficiencies in instructional planning, lesson presentation, and behavior management. In February 2012, Respondent experienced serious problems in assigning correct grades and less serious problems in proctoring exams and handling secure exam materials. Eventually, Respondent managed to combine her deficiencies in teaching and classroom management by improperly assigning low academic grades based on misbehavior. By letter dated March 21, 2012, which was later superseded by a letter dated March 22, 2012, Ms. Baugh advised Respondent that she was recommending a three-day suspension for the above-discussed performance deficiencies, which covered a period starting with the beginning of the school year and ending on the date of a predisciplinary meeting that had taken place on March 2. This is the proposed action that is the subject of DOAH Case No. 12-1924TTS. Two more classroom-trashings occurred in the two days following the March 21 three-day suspension letter. First, on March 22, Ms. Powell found Respondent trying to use an overhead in a fully lighted room. Because the image was washed out, Ms. Powell suggested that they turn out the lights, but provide some light by opening the blinds shading the top of the windows. Ms. Powell and Respondent adjusted the lighting accordingly. Ms. Powell left the classroom to help another teacher. Returning to Respondent's classroom 30 minutes later, Ms. Powell could hear a loud commotion as she approached the classroom in the hall. She heard falling desks and chairs and loud shouting. As Ms. Powell entered the classroom, it was pitch black. Ms. Powell turned on the lights and saw that the students had trashed the classroom, again flipping desks and chairs and strewing the floor with papers and books. Ms. Powell asked what was going on, and Respondent explained, with no sense of urgency, that the students kept turning off the lights. When Ms. Powell asked Respondent to identify the misbehaving students, Respondent mentioned the name of one student. The student declared that he was innocent, but Respondent said, "oh, yes, it was you." When Ms. Powell began to call this student's parents, Respondent interrupted and said she was not sure that he was the perpetrator. Second, on the afternoon of Friday, March 23, Ms. Powell noticed students running from the computer lab toward the vending machine area. Ms. Powell approached Respondent, who had just escorted her class (or most of it) from the computer lab back to her regular classroom. Respondent denied that there had been any trouble. Unconvinced, Ms. Powell walked over to the computer lab and found overturned desks, flipped chairs, the phone off the hook and on the floor, and papers and books strewn along the floor. Respondent entered the room and denied that her students had done this trashing of the lab. This denial, which Respondent repeated at hearing, is specifically not credited. Additionally, after receiving the March 21 three-day suspension letter, Respondent continued to grade student work arbitrarily. On one occasion, also on March 22, Ms. Powell noticed that two students with the identical answers had received very different grades for their homework--one getting a 100% and one getting a 50%. When Ms. Powell asked Respondent about the discrepant grading, Respondent replied that she had concluded that the student with the 50% had cheated. Respondent reasoned that the first student to have handed in her assignment had obviously done her own work, but the other student must have copied. When Ms. Powell pointed out the fallacy of this thinking and asked if Respondent had bothered to speak to either of the students, Respondent admitted that she had not. On another occasion, within the same week, Respondent reduced a student's grade on an assignment because of classroom misbehavior--again, improperly using an academic assessment to deal with misbehavior. The student demanded to know whether Respondent had reduced her grade because she is black. Resorting to her earlier strategy of repeating profanity, Respondent sarcastically repeated the question by saying that she had reduced her grade because she was black. Outraged, the student then became loud and aggressive with Respondent. This statement of Respondent, who is white, was insensitive, at the least. As noted by the reference in Petitioner Exhibit 44, this statement came shortly after the racially charged killing of Trayvon Martin. This exhibit states that Respondent tried to justify her reducing the student's grade because the student had taken a piece of yellow paper from Respondent's desk, without permission, and had written on it: "RIP Trayvon Martin." This is a good example of Respondent's missing a crucial teachable moment, instead insensibly clinging to her "technique" of repeating the student's utterance--for what purpose is never clear. The evidentiary record reveals some evidence of insubordination, considerable evidence of incompetency, and overwhelming evidence of misconduct in office. In some cases allowing and in other cases creating conditions in her classroom the precluded learning and endangered the safety of the students entrusted to her, Respondent's deficiencies in classroom management--exacerbated by her incompetency in the form of inefficiency and incapacity--are so serious as to impair her effectiveness in the school system. Considering the acts and omissions covered by the two written reprimands solely for the purpose of applying the progressive discipline policy of Petitioner, the evidentiary record amply supports a 13-day suspension, without pay, for the misconduct in office and incompetence proved in these cases.
Recommendation It is RECOMMENDED that the Broward County School Board enter a final order suspending Respondent, without pay, for 13 days. DONE AND ENTERED this 12th day of February, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2013. COPIES FURNISHED: Melissa C. Mihok, Esquire Kelly and McKee, P.A. 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Eugene K. Pettis, Esquire Brian Engel, Esquire Haliczer, Pettis, and Schwamm, P. A. One Financial Plaza, 7th Floor 100 Southeast 3rd Avenue Fort Lauderdale, Florida 33394 Robert W. Runcie, Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Dr. Tony Bennett Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue for determination at hearing was whether just cause exists to sustain Respondent’s dismissal from employment with the Miami-Dade County School Board (“School Board” or “Petitioner”).
Findings Of Fact At all times material hereto, Petitioner was a duly constituted School Board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida (“School District”), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.23, Florida Statutes. At all times material hereto, Respondent was employed as an elementary school teacher at Van E. Blanton Elementary School (“Blanton”) by the School Board and held a professional services contract. She began working for the School District as a substitute teacher in 1994 and has been employed as a full-time teacher for 14 years. On April 20, 2016, Respondent was issued a Professional Responsibilities Memorandum regarding student discipline. The purpose of the memo was to remind Respondent of how to properly treat children who are misbehaving after she was observed sending two students to stand in the corner after blurting out answers. On or about April 25, 2016, Respondent hit a student with her hand on the student’s arm, leaving the student’s arm visibly red and welted. A summary of a conference-for-the-record from May 18, 2016, was admitted into evidence. Pedro Cedeno, the principal at Blanton for the past three years, stated that he considered the current incidents similar in nature to this prior incident from 2016. On May 19, 2016, Respondent was issued a written reprimand relating to the April 25, 2016, incident. On April 18, 2017, the Education Practices Commission (“EPC”) filed an Administrative Complaint against Respondent based on the April 25, 2016, incident under EPC Case No. 17-0457-RT. On December 14, 2017, a Final Order was entered in the EPC case, adopting the parties’ Settlement Agreement, which issued Respondent a letter of reprimand and placed her on one year’s probation. Throughout Respondent’s tenure with the School Board prior to the instant matter, the only discipline she received was the reprimand described above. Three incidents, occurring on March 8, 13, and May 23, 2019, respectively, gave rise to these proceedings. Respondent worked at Blanton as a first-grade teacher. On March 8, 2019, Mr. Cedeno was standing near the main office when he saw Respondent and her class coming in from the hallway. Mr. Cedeno saw Respondent pull a student, C.J., who was kneeling on the ground at the back of the line. Respondent said something to the student, but Mr. Cedeno could not hear it. Mr. Cedeno saw Respondent pull the student by the arm. He testified that Respondent was “pulling her to move her whole body over to the back of the class … it was more of a pull, which is what caught my attention.” Mr. Cedeno approached Respondent and asked, “What’s going on?” He also told Respondent that they cannot pull students like that. He advised Respondent it would be better to leave the child there and call for attention or assistance. Apparently, the video cameras were not working on March 8 because no video footage was available for Mr. Cedeno, Respondent, or the undersigned to review after the incident or at hearing. On March 13, 2019, Mr. Cedeno saw via video that Respondent had her students lined up as they were coming or going into the classroom. Mr. Cedeno observed Respondent grab and pull a student into the class. That caught his attention. It was not an appropriate way for Respondent to have handled the situation. Both the March 8 and 13, 2019, incidents involved C.J. The March 13, 2019, video showed that C.J. was moving slowly in the hallway while the rest of Respondent’s students were already in the classroom. Respondent waved at C.J. and said something to the effect of “let’s go.” When C.J. did not respond, Respondent went to C.J., took her by the arm, and walked her into the classroom. While the video does not show excessive force being used to pull C.J. up from the floor where she was tying her shoe, it did show more than Respondent reaching out her hand, then waiting for C.J. to take her hand to be led. There was a small amount of force involved in getting C.J. up and moving. Respondent testified she was not mad at C.J., but she was firm in telling C.J. she needed to get going and into the classroom. From the video, C.J. did not seem embarrassed and was not crying when she was physically urged up and into the classroom. The video does not evidence violence, anger, or aggression. It does evidence a teacher pulling a young student up from the floor and walking her briskly into the classroom. At hearing, however, C.J. testified credibly that she was both embarrassed and sad by the incident. Following the March 13, 2019, incident, Mr. Cedeno filed a personnel investigative form with the School District’s Office of Professional Standards. No action was taken to remove Respondent from her position or to impose any discipline. J.E., a student, testified regarding the May 23, 2019, incident. He said Respondent was his teacher during the prior school year. He watched the video of the incident and identified both himself and Respondent in the video. J.E. had asked Respondent if he could go to the bathroom. Respondent did not allow J.E. to use the bathroom at that time. Then, J.E. tried to get into the classroom to use the bathroom and Respondent pushed J.E. The video shows Respondent push J.E. J.E. fell and then got up. His leg was hurting and it made him feel mad. J.E., a large child for his age, appeared somewhat distracted while testifying, and his mother had to prompt him once or twice to pay attention to the questions being asked and to give audible answers. However, his recollection of the May 23, 2019, incident was clear. He admitted that he was acting up, which was confirmed by Respondent, but was “mad” at being pushed into the classroom where he landed on one of his classmates. He was only mildly injured and did not require first aid or medical care as a result of his fall. Respondent noted that J.E. was a disruptive student who is disobedient, bigger than the rest of the students in the class, and is known for pushing and bullying the other students. Respondent testified that on May 23, 2019, rather than entering the classroom when he was supposed to, J.E. doubled back, grabbed another student, and spun the student around, which caused that student to cry. Respondent was obviously frustrated by J.E.’s behavior and gave him a push into the room. J.E. bumped into his best friend, which sent the two of them sprawling onto the ground. According to Respondent, J.E. fell to the ground laughing and clowning around, after which they all sat down and started class. J.E. did not appear embarrassed or upset by the incident, Respondent testified. The May 23, 2019, incident was captured on video and was personally witnessed by a teacher, Alissa Bennett, who was coming down the hall with her class at the time. Ms. Bennett is a fifth-grade teacher at Blanton and was employed as such during the incidents giving rise to these proceedings. Ms. Bennett knows of Respondent but does not know Respondent personally. Ms. Bennett testified regarding the May 23, 2019, incident and reviewed the video of the incident during her testimony. On May 23, 2019, Ms. Bennett was walking her class to lunch. It was about 11:30 or 11:35 a.m. She came out of the stairwell and saw a big commotion in front of her. There was a lot of yelling and kids in the hallway. When Ms. Bennett walked closer, she saw Respondent push a student into the classroom. Ms. Bennett kept walking and heard one of her students exclaim, “[w]ow, that teacher just pushed that student.” Ms. Bennett said, “I was kinda like, oh, my God. Did that just happen? Did I just see that?” She recognized this as a serious incident. She took her students to lunch. Later that night, she told her boyfriend about the events she witnessed at school. She was a new teacher and was not sure what to do about it. Her boyfriend encouraged her to report the incident. The following day, on May 24, 2019, Ms. Bennett reported the incident via text to the counselor. She also spoke to Mr. Cedeno about what she saw. Mr. Cedeno acknowledged speaking with Ms. Bennett about the incident. He explained that Respondent could have avoided the situation by using a call button, an emergency button that immediately notifies the office, or she could have asked another person in the hallway for assistance. For example, there are always security and staff in the hallway, and they are present in the video evidence submitted. The security and other staff members have radio access. Mr. Cedeno testified that there was no excuse, based upon what he saw in the video, for Respondent to push J.E. The School Board and the United Teachers of Dade, the classroom teachers union, have agreed to be bound by the principle of progressive discipline, and that discipline imposed shall be consistent with that principle. Accordingly, they have agreed that the degree of discipline shall be reasonably related to the seriousness of the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for ten days without pay and awarding her back pay from the date her employment was terminated, except for the ten days of suspension. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2020. COPIES FURNISHED: Cristina Rivera, Esquire Miami-Dade County School Board Office of the School Board Attorney 1450 Northeast 2nd Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Michele Lara Jones, Esquire Miami-Dade County School Board 1450 Northeast 2nd Avenue, Room 430 Miami, Florida 33132 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue to be determined is whether grounds exist for terminating Respondent's employment as a teacher in the Duval County School System.
Findings Of Fact Stipulated Facts Respondent, Michael Altee, is a teacher covered under the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21147 (1941), as amended (Tenure Act), and the Collective Bargaining Agreement between Duval Teachers United and the Duval County School Board for 2006-2009. Mr. Altee is a tenured or experienced contract teacher who can only be terminated for "cause" as defined in the Tenure Act and the collective bargaining agreement. During the spring semester, 2007, Respondent taught history and intensive reading at Frank H. Peterson Academies of Technology (Peterson Academy). On April 11, 2007, the Peterson Academy was placed on "lockdown" status based on an incident whereby someone brought a gun to school. On that day, Michael Altee was absent from school. During his teaching career with the Duval County School system, Mr. Altee received satisfactory evaluations. Respondent did not dispute that he had been the subject of disciplinary action by the School Board in the past and did not challenge the basis for the past disciplinary actions alleged in the September 17, 2008, Notice of Termination. (Transcript at 58-60). Accordingly, the allegations in the Notice regarding past conduct are accepted as fact: Inappropriate Language, Comments to Students, Sandalwood High School, SY 2000- 2001 During the 2000-2001 school year, an investigation by DCSB's Affirmative Action Office confirmed that you routinely made crude and inappropriate comments which were offensive to students under your care. For instance, you commented that a female student "could not afford to let her (buttocks) get any bigger," and asked her "why don't you bend me over and spank me." You also stated that the brother of a certain female student "had the brains" and she "had the beauty," and you announced to your class that they were all "losers" and that you were "sick and tired" of them. While you initially denied the comment on a female student's buttocks, you later rescinded the denial and admitted to saying things in class that your students "may misconstrue." The foregoing misconduct result in an April 9, 2001 Reprimand Letter from DCSB's Professional Standards Office, which you signed. Further, the Commissioner of Education for the State of Florida filed an Administrative Complaint against you on May 7, 2003, before the Education Practices Commission ("EPC") based on the foregoing misconduct. That proceeding concluded with a February 4, 2004, Final Order by EPC adopting the terms and conditions of an October 7, 2003 Settlement Agreement which included: placing you on probation (i.e., your license to teach in Florida) from February 4, 2004 through February 4, 2006: your agreement to (i) "violate no law and fully comply with all district school board regulations, school rules, and State Board of Education Rule 6B-1.006;" and (ii) satisfactorily perform (your) assigned duties in a competent, professional manner"; your agreement to "satisfactorily perform (your) assigned duties in a competent, professional manner"; and the issuance of a January 23, 2004, Letter of Reprimand by the EPC. R-rated Movie (Fahrenheit 911), Sandalwood High School, SY 2004-2005 During the 2004-2005 school year, you played an R-rated movie to your students without written parental permission in violation of DCSB policies, despite your receipt of such policies just days earlier. This violation of DCSB policies resulted in an October 18, 2004, Reprimand Letter from Principal Bill Gesdorf, which you signed and accepted the disciplinary action. Threats to Students, Staff, Sandalwood High School, SY 2004-2005 During the 2004-2005 school year, you acted in an unreasonable and aggressive manner toward students. For instance, as a disruptive student was escorted out of your class and led down a hallway by a school guard whom you summoned, you came within close physical proximity to and circled the student in a taunting and provocative manner while calling the student names such as "punk," and telling the student that you were "his worst nightmare." On a separate occasion, you behaved in a similarly aggressive and hostile manner toward a school security guard in the presence of students and staff. You provoked and shouted at the security guard and appeared to invite a physical altercation with him. Your conduct toward students and school personnel resulted in a June 5, 2005, Letter of Reprimand from DCSB's Professional Standards Office (which you signed and accepted) and a suspension of your employment without pay for ten working days. Additional Findings of Fact The School Board is charged with the responsibility to operate, control and supervise all free public schools within the School District of Duval County, Florida, pursuant to Section 1001.31, Florida Statutes. Respondent is a tenured teacher with the School District. Pursuant to his teaching contract with the School Board, and consistent with his teaching certificate issued by the State of Florida Department of Education, Respondent is subject to the School Board's rules and regulations, as well as all applicable Florida laws and rules regulating teaching in public schools. Teachers employed by the School Board are bound by a progressive discipline policy, which requires that discipline generally be imposed with increasingly severe penalties: first, a verbal reprimand; second, a written reprimand; third, a suspension without pay; and fourth, termination of employment. The policy may be disregarded only for severe acts of misconduct. The allegations against Respondent concerning the 2006-2007 school year allege actions taken by Respondent with respect to his first-period intensive reading class at Peterson Academy in the second semester of the year. At the time these events occurred, step three discipline, i.e., an unpaid suspension, had been imposed against Respondent for previous conduct at a different school. During the 2006-2007 school year, Respondent was certified to teach history, but was also assigned to teach intensive reading to freshmen at Peterson Academy. By his own description, this assignment was "against his will." Intensive reading is a class designed for those students who have not achieved an acceptable grade on the reading portion of the Florida Comprehensive Assessment Test, generally referred to as the FCAT. Although Respondent generally teaches history, he was assigned to teach intensive reading for this particular school year. Several of the students in Mr. Altee's class had other teachers in the fall semester, and were transferred to Mr. Altee's class in the spring. The format of the intensive reading classes was generally the same. Each student was expected to read for approximately 15 minutes at the beginning of the class period. The teacher would then read aloud to the students for approximately the same length of time, and then the students would work out of resource books (or workbooks). Generally, the written assignments would be related to whatever was read in class. There is no accepted "list" of approved reading material for teachers to use in the intensive reading class. Materials were provided, but not required to be used. Teachers are expected to use good judgment and select reading material that is age and content appropriate for the students in the class being taught. In the intensive reading classes students took prior to Mr. Altee's class, teachers generally read poems or fictional short stories. Mr. Altee, however, felt that the materials provided were boring and elected to read different materials to the students in his class. He admitted not knowing what reading material would really be appropriate for a freshman intensive reading class. Included in the materials that he read were "true crime" stories, including a story read over at least two days about the serial killer, Ted Bundy. In conjunction with his reading, he passed around pictures for the students to observe. The students testified that pictures shown in class included post-execution pictures of Ted Bundy, autopsy pictures of unidentified people, and pictures of Seung Hui Cho (Cho), the person responsible for the Virginia Tech University killings. Mr. Altee, on the other hand, testified that he only showed Bundy's mug shot, a picture of him approaching the courthouse and a picture of Bundy defending himself. The readings and pictures had no discussion or written work associated with them. No teaching point was made in connection with these stories or pictures. On or about April 20, 2007, student J.H. and his mother complained to John Holochek, the Peterson Academy principal, that Mr. Altee was showing inappropriate pictures in the freshman intensive reading class, and that Mr. Altee had made a statement about bringing a gun to school. J.H. was in Mr. Altee's class for the second semester of the school year. J.H. and Mr. Altee did not always see eye- to-eye, and J.H. received several referrals for bad behavior from Mr. Altee. While there was significant testimony from several students that the referrals were not always warranted, at least some portion of the referrals were legitimately issued. Mr. Holochek contacted the Office of Professional Standards regarding the complaint. John Williams, the Director of the Office of Professional Standards, and Leroy Starling, the Office's investigator, went to the Peterson Academy and interviewed J.H. and his mother. The School Board's Office of Professional Standards initiated an investigation, which began on or about April 20, 2007. The investigation was handled primarily by Leroy Starling, an investigator with sixteen years experience with the School Board and 25 years of experience as a homicide investigator. John Williams was also present during the interviews taken in the investigation. According to the report prepared for the investigation, J.H. reported that Respondent began his intensive reading class with photos and stories focusing on crime and violence, and showed pictures of Ted Bundy both before his execution and post mortem, as well as pictures of President John F. Kennedy when he was assassinated and at the time of his autopsy. J.H. also reported that Respondent had made a comment about bringing a gun to school. The investigation occurred at a time immediately following two significant incidents. On April 11, 2007, as referenced in finding of fact four, Peterson Academy was on "lock-down" because a student brought a gun to school. On April 16, 2007, Virginia Tech University was the subject of what has been described as the deadliest shooting rampage in American history, where approximately 33 students and faculty were killed and several more injured by a lone gunman, Seung-Hui Cho, who then took his own life. These two events were five days apart. After speaking with J.H. and his mother, Respondent was interviewed. Present at his interview were Holochek, Starling, Williams, and Richard Miller, a teachers' union representative. Respondent first denied making any statement about guns on campus. He ultimately retreated from that position, stating instead that he made a sarcastic comment in response to a comment by a student, and that his words were "twisted" by the student. Respondent told investigators that J.H. was lashing out because he wrote J.H. a disciplinary referral the day before and the rest of the students were lying. After speaking with Respondent, Principal Holochek chose several students from the intensive reading class to interview. At Respondent's request, student K.H. was also interviewed. Respondent's union representative, as well as Starling and Williams, were present for the student interviews. At the first interview of the students, they were asked two questions: 1) whether they had been shown photographs by Mr. Altee; and 2) did they ever hear any statements made by Mr. Altee concerning a gun. Based upon the students' answers, Mr. Starling recovered the computer from Mr. Altee's classroom and turned it over to James Culbert, the School Board's forensic computer analyst, to view the computer and determine whether any images like those described by the students had been downloaded on the computer. Mr. Altee's District-issued laptop computer was also retrieved. Mr. Culbert searched for images using the search terms "JFK" and "autopsy" in the computer hard drive's temporary internet files that had been accessed using Respondent's log-in. Mr. Culbert was able to identify the last time a particular picture or website was accessed, but could not identify the first time photos were viewed. The investigators printed a twenty-one page internet activity report entitled "Pictures Accessed by Alteem" (Respondent's computer user name) which showed approximately forty thumbnail images retrieved from Respondent's computer hard drive. The students previously interviewed were then recalled individually to look at the pictures and identify which, if any, were shown to them by Mr. Altee. This packet was introduced at hearing as Petitioner's Exhibit 6. The students were asked by the investigator to write their names next to the pictures they remembered seeing. Those students interviewed later in the process could see the signatures of the students who had come before them. However, the more credible evidence is that the students were generally not affected by the signatures of students who signed before them. They only signed those pictures they remembered seeing in class. The pictures shown to the students included several pictures of John F. Kennedy as well as others on an autopsy table, with some pictures including open cranial wounds; pictures of Cho; some movie ads; other physical wounds; someone "shooting up" with a needle; and pictures from the JFK assassination. Some were difficult to make out and many appeared to be similar views of JFK during his autopsy. Some pictures were identified by several students; some by a few; and some not at all. N.M. identified pictures 1, 6, 10, and 29. Three of these pictures were of Cho, one was of John F. Kennedy post- mortem. At hearing, she recalled discussions of Bundy, autopsies, and Cho and Respondent's comment about of a gun. She recalled that the gun comment was in connection with the Cho shootings, although her identification of the timing of the comment was not possible. J.T. identified pictures 2, 10, 29 and 36. Two were of Cho, and two were of JFK post-mortem. J.T. did not testify. A.J. identified pictures 2, 6, 10 and 29. A.J. testified that she recalled Mr. Altee reading about Bundy, and talking about Cho and autopsies or executions, but did not recall whether Mr. Altee read any stories about JFK. She did not look at all of the pictures passed out in class, and did not believe she was influenced by the signatures of other students. She also recalled a comment by Mr. Altee about bringing a gun to school, which she believed was in conjunction with the Virginia Tech incident. J.H. identified pictures 2, 6, 10 and 29 in the initial investigation. At hearing, nearly two years later, he also identified pictures 1, 3, 9, 12, 13, 15-20, 25, 30-32, 34- 36 and 38. Pictures 2, 3, 16, 18, 19, and 36 all appear to be pictures of JFK post mortem that are similar views from different angles. G.H. identified pictures 2, 6, 24, 29 and 36. At hearing, he recalled discussions of Ted Bundy, JFK, pictures of autopsies or executions and of Cho. He also recalled a comment by Altee about bringing guns to school in connection to the Virginia Tech incident. G.H. was not influenced by the signatures of other students, but was very disturbed by the pictures.1/ A.K. identified a great deal more pictures than any other student. Although in some respects his testimony matched that of his classmates, it also went so far beyond what his classmates stated as to make him not credible. His testimony is not relied on in these proceedings. K.D. did not identify any of the pictures in the packet. She did confirm that Respondent read true-crime stories, including stories of Ted Bundy, and showed pictures of Bundy, including a mug shot, and one post-execution picture. She did not recall the gun statement or any discussion of JFK. During the initial investigation and at hearing, students indicated that there were other pictures observed by the students that were not in Petitioner's Exhibit 6. Also, several times students identified pictures of JFK as being pictures of Bundy.2/ From the evidence presented, it is more probable than not that the students were shown pictures of Bundy, JFK and Cho. Some, but not all, of the students were disturbed by the photos, and all of the students remembered the story related to Bundy. Respondent claims that he could not have shown the images to the students because the file stamp assigned to each image shows that the image was created at some time on April 19, 2007, after the students left his class. April 19 was the last day Respondent taught this class. He also contends that it was not possible for him to have shown the Cho pictures because they were not released in the media until April 18, 2007, after school hours. Respondent's claim is without merit. First, the file created stamp only shows the last time a website is visited, not the first time it is seen. Moreover, there was competent evidence that Respondent viewed a website containing the JFK images on his laptop as early as April 10, 2007. With respect to the Cho pictures, Respondent admits that they were available April 18, and that he taught intensive reading April 19. Given the consistent testimony of the students, it is more probable than not that Respondent showed these pictures on April 19 in conjunction with discussion of the Virginia Tech massacre. Respondent did not explain why he would be viewing JFK autopsy photos, Bundy photos or the Cho photos at any time on his school-issued computer if he did not intend to use them in conjunction with a lesson other than to say, "I am a historian, a history teacher." He did not indicate that he was using this material for any of his history classes. In short, the viewing and distribution of these photos had no educational component and was not related to the goals or objectives of the class being taught. Respondent insists that the photos were properly shown because images of violence are often portrayed in the classroom, pointing to other sources, such as an eleventh grade history book and Newsweek article lesson plans dealing with violence or, for example, the charges against the Duke lacrosse team. The difference, however, is that in Mr. Altee’s classroom, the showing of the photos had no identified educational value. They were not educational aids to assist in reaching any educational objective. They were not related to any work that was geared to improving the students’ reading. In addition to showing the pictures discussed above, the School Board has charged that Respondent made statements in the classroom about bringing a gun to school. The preponderance of the evidence supports the allegation that Respondent made a comment about bringing a gun to school, although the timing of the statement and the actual statement made is unclear. Respondent claims that a day or so after the school “lockdown,” students in his class were talking about the incident and there was some discussion about who brought the gun to school. During the discussion, a student said, “Altee brought the gun.” Altee responded by saying, “Yeah, Altee brought the gun.” Respondent insists that the statement was a sarcastic response that no one could take seriously. It is undisputed that Respondent was not present at school the day of the lockdown. Four students testified that the statement was made in connection with the Virginia Tech shootings. Specifically, A.J. testified that Altee said if he was put in the same predicament as Cho, he probably would have brought a gun to school as well. Others who testified that the gun statement was made in conjunction with the Virginia Tech shootings stated that Respondent said he would bring a gun to school and show how it worked. The timing attributed to these statements was less clear. Hearing in this case took place nearly two years after the events in question. A.J. placed the conversation at approximately two weeks before Mr. Altee was removed from the classroom. J.H. testified the comments were made the day after the lockdown, which would have been April 12, 2007. Given the totality of the evidence, it is more probable than not that Altee made the statement that he could understand someone who had been bullied bringing a gun to school and made this statement in conjunction with the Virginia Tech killings. Respondent’s reaction to the charges against him is that the students are lying and are motivated by his disciplinary actions against them. He claimed that he read a variety of crime stories to the students, including stories about John Dillinger and Al Capone, and that he read these types of stories to avoid boredom. Respondent also points to the fact that before being questioned in connection with this investigation, none of the students had complained to those in authority about the pictures or the comment about the gun. Respondent’s position is simply not credible. While he claims the students are lying, the only students he identified that would have the motivation to lie are J.H. and A.K. A.K.’s testimony has been discarded as generally not credible. While J.H. admitted to having a history of referrals from Respondent, there is no credible reason on the record for the remainder of the students to lie about what they saw and heard in Mr. Altee’s classroom. Not one student indicated that they remembered stories about Al Capone or John Dillinger, but all remembered stories about Ted Bundy. Moreover, Respondent’s reliance on the lack of prior complaints to authorities is misplaced. These are teenagers, not adults. The testimony presented indicates that in at least a couple of instances, students had complained about Altee’s behavior, either to parents or to other school officials (but not the principal), and were advised to “take the high road” and just try to get along. With respect to the gun comment, the greater weight of the evidence indicates that the comment was made in the days immediately preceding the investigation. No earlier complaint would have been feasible.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that the Respondent violated Florida Administrative Code Rules 6B-1.006(3)(a) and (c), and 6B-1.001(2) and (3), thereby demonstrating cause for termination of his teaching contract pursuant to Section 4(b) of the Duval County Teacher Tenure Act. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2009.
The Issue The issue for determination is whether Respondent violated section 1012.795(1)(j), Florida Statutes (2015),1/ and Florida Administrative Code Rules 6A-10.081(5)(a), (h), and (i); and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Mr. Kellen is currently licensed as a teacher in Florida and has been issued Florida educator certificate 1007357. Mr. Kellen's certificate covers the areas of Educational Leadership, English, Pre-Kindergarten/Primary Education, Reading, and Exceptional Student Education. Mr. Kellen's certificate expires on June 30, 2020. Prior to obtaining his Florida educator certificate, Mr. Kellen was employed as a teacher in the State of Indiana from 1997 to 2005. In 2006, Mr. Kellen moved to Florida and became a reading teacher in Collier County from 2006 to 2007. From 2007 to 2008, he was a middle school teacher at Six Mile Charter Academy with Charter School USA. From 2009 to 2011, Mr. Kellen was employed as a substitute teacher in Lee County, Florida. From January through March 2012, Mr. Kellen was a paraprofessional in Monroe County, Florida. In August 2012, Mr. Kellen was employed as a teacher at Knox Academy in Lee County, Florida. Three months later, in November 2012, Knox Academy terminated his employment. Brad Buckowich was the principal at Knox Academy. Mr. Buckowich both hired and fired Mr. Kellen. In July 2013, Mr. Kellen applied for a teaching position at James Stevens International Academy ("James Stevens Academy"), a school within the School District. Alice Barfield, principal at James Stevens Academy, interviewed Mr. Kellen for a reading teacher position. Shortly, thereafter, she offered him the position. As part of the hiring process, the School District required Mr. Kellen to submit references from previous employers. On July 31, 2013, Mr. Kellen met with Georgianna McDaniel, the Executive Director of Personnel Services for the School District, to discuss the School District hiring procedures. Ms. McDaniel explained to Mr. Kellen that School District policy required the hiring school to contact the candidate's previous employer before the School District would hire him. Following the July 31 meeting, Mr. Kellen brought to Ms. Barfield at James Stevens Academy a recommendation letter from Knox Academy dated July 8, 2013, and signed by Brad Buckowich. The recommendation letter was a photocopy. However, Mr. Kellen represented throughout the hiring process (and maintained during the final hearing) that Mr. Buckowich prepared and signed the original recommendation letter on behalf of Knox Academy.2/ The photocopied recommendation letter which Mr. Kellen provided to Ms. Barfield included a Knox Academy letterhead. The letter also bore the signature of Brad Buckowich at the bottom. Upon review of the recommendation letter, however, Ms. Barfield noticed that the signature seemed odd. The top of the letter "B" in the name "Brad" and "Buckowich" was cut off. The signature was also slightly slanted. Thereafter, Ms. Barfield contacted Mr. Buckowich to personally inquire about Mr. Kellen's employment with Knox Academy, obtain his verbal recommendation as Mr. Kellen's last employer, and discuss the recommendation letter. When Ms. Barfield's secretary reached Mr. Buckowich by phone, however, he declined to recommend Mr. Kellen for the position. Furthermore, he denied that he had ever written a recommendation letter for Mr. Kellen. Ms. Barfield then faxed the recommendation letter to Mr. Buckowich. After reviewing the letter, Mr. Buckowich repeated to Ms. Barfield that he did not draft or sign the letter. Ms. Barfield faxed a copy of the recommendation letter to Ms. McDaniel at the School District office on August 2, 2013. On August 5, 2013, Mr. Kellen visited James Stevens Academy. He was told there was a problem with his reference letter. Later that morning, Mr. Kellen met again with Ms. McDaniel at the School District office. Ms. McDaniel informed Mr. Kellen that Mr. Buckowich said he did not prepare or sign the recommendation letter. Mr. Kellen disclosed that he had actually prepared the letter for Mr. Buckowich's signature. However, Mr. Kellen insisted that Mr. Buckowich signed the letter he submitted. In the afternoon of August 5, 2013, Mr. Kellen wrote an e-mail addressed to Mr. Buckowich. In the e-mail, Mr. Kellen asked Mr. Buckowich to "please fill out this form as you promised in March, that you would give me a good recommendation based on my working as Asst. Principal/Instructor." Mr. Kellen added, "[t]o avoid any mis-communication, email the form signed to me at this email and to Mrs[.] McDaniel in HR." On August 9, 2013, Mr. Buckowich met with Ms. McDaniel to discuss and review the recommendation letter. Mr. Buckowich observed that the signature on the photocopied letter was, in fact, a copy of his signature. However, Mr. Buckowich reiterated that he did not draft or sign the recommendation letter. Further, Mr. Buckowich produced for Ms. McDaniel another document he signed in October 2012, which he believed was the source of the signature that was "cut and pasted" onto the recommendation letter Mr. Kellen presented to Ms. Barfield. Mr. Buckowich had provided this document to Knox Academy employees, including Mr. Kellen. Mr. Buckowich surmised that Mr. Kellen, likely by using a computer Word or PDF program, cut his signature from the October 2012 document and pasted it onto the recommendation letter. Based on her meeting with Mr. Buckowich, Ms. McDaniel concluded that the recommendation letter Mr. Kellen submitted to support his application for the teaching position was fraudulent. Ms. McDaniel determined that the School District would not hire Mr. Kellen. At the final hearing, Mr. Buckowich expanded on why the recommendation letter should not be considered genuine. Mr. Buckowich stated that the recommendation letter had several formatting and style errors that he would not have used or made. These mistakes included: he would have adjusted the date to the right margin, not centered it under the Knox Academy seal; he would have placed the subject line flush with the left margin, not indented it; and he would not have capitalized every word of the addressee line. As far as the letter's content, Mr. Buckowich stated that he would not have used the words or phrases written in the letter. He would not have identified Mr. Kellen as the "Assistant Principal/Instructional Leader." Neither would he have used the term "RTI strategies." Finally, regarding the signature, other than not actually signing the recommendation letter, Mr. Buckowich commented that the signature looked as if it had been cut and pasted, as if from another PDF or scanned document, onto this letter. Aside from this fact, Mr. Buckowich testified that his actual signature block reads "Brad J. Buckowich, Principal/Director, Knox Academy," not "Mr. Brad Buckowich, Founder/Principal, Knox Academy," as written on the letter. To conclude, Mr. Buckowich commented that if he would have actually drafted a recommendation letter for Mr. Kellen, he would have sent an original letter with a Knox Academy color logo and an original signature, not a photocopy. At the final hearing, Mr. Kellen adamantly asserted that the recommendation letter with Mr. Buckowich's signature was genuine. Mr. Kellen stated that he obtained the letter from his former attorney. His attorney had received it from Mr. Buckowich and then forwarded it to Mr. Kellen. The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators. See Chapter 1012, Fla. Stat. Prior to this current matter, the Education Practices Commission entered two, separate final orders against Mr. Kellen sanctioning his educator certificate for misconduct, one dated December 4, 2006, and one dated October 23, 2008. Based on the evidence and testimony presented during the final hearing, Petitioner demonstrated, by clear and convincing evidence, that Mr. Kellen submitted a fraudulent recommendation letter to the School District as part of his application for employment in a teaching position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent, Irwin Kellen, in violation of section 1012.795(1)(j) and rules 6A-10.081(5)(a), (h), and (i). It is further RECOMMENDED that Petitioner revoke Respondent's certificate for a period of time deemed appropriate by the Education Practices Commission. DONE AND ENTERED this 27th day of August, 2015, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2015.
The Issue As identified in the Prehearing Stipulation filed on October 11, 2010, the issues are whether Petitioner may dismiss Respondent for incompetency, as defined by Florida Administrative Code Rule 6B-4.009(1); failing to make adequate progress on her Probationary Performance Plan so as to cause her students to perform at an unacceptable level, in violation of her employment contract and school board policies; willful neglect of duty, as defined by Florida Administrative Code Rule 6B-4.009(4); or failing to correct performance deficiencies timely, as required by section 1012.34, Florida Statutes.
Findings Of Fact Respondent earned a bachelor's degree in elementary education in 1993 and was certified in elementary education. In 1997, Respondent earned her master's degree in the teaching of reading. Respondent taught reading in first, third, fourth, and fifth grades in public schools in New York City from 1993-2005. She was a satisfactory teacher during this period. Respondent and her husband moved to Florida in 2005. Petitioner hired Respondent to teach reading at Discovery Middle School early in the 2005-06 school year. At the time, Respondent held certifications in elementary education and elementary and secondary reading. At the end of the 2005-06 school year, Respondent received a final assessment report reporting that she had been "effective," which is the highest of the four ratings, in each of the six areas evaluated: classroom management and discipline, curriculum knowledge, planning and delivering instruction, assessment of student performance and individual professional development plan, interpersonal skills, and professional responsibilities. However, the principal of Discovery Middle School did not rehire Respondent for the following school year. For the 2006-07 school year, Respondent was hired to teach reading at Odyssey Middle School. In the latter half of October 2006, Respondent received an unfavorable preliminary assessment report showing that she "needs improvement" in classroom management and discipline, curriculum knowledge, and professional responsibilities and that she was "satisfactory" in the other areas. "Needs improvement" is better than only "unsatisfactory" among the four ratings. The comment under classroom management and discipline states, in part: [Respondent] is working on stopping misconduct as well as promoting/creating an atmosphere of mutual respect between students and herself. High expectations should be clearly conveyed with consistency. The comment under curriculum knowledge notes, in part: [Respondent] is learning the Corrective Reading program. She will continue working to learn strategies/skills that will enhance teacher performance and student learning. At the end of the school year, in all six areas, Respondent received "satisfactory," which is the second-highest rating. This evaluation contains detailed comments, most of which indicate that Respondent has shown improvement or growth or is continuing to work on specific skills. The comment under classroom management and discipline notes, in part: "[Respondent] continues to need work on using voice tone when stopping misconduct, as well as promoting and [sic] atmosphere of mutual respect, setting high expectations." The comment under curriculum knowledge states: "[Respondent] has shown continued growth in learning the Corrective Reading program, [sic] and various strategies and skills that will enhance teacher and student performance." The comment under planning and delivering instruction states, in part: "[Respondent appears to be more comfortable in her delivery of instruction to students. She is also utilizing more questioning techniques. [Respondent] is continuing to work on incorporating a variety of activities that encourage participation, critical thinking, and comprehension." For the second consecutive year, though, Respondent's principal did not reemploy her for the following school year. For the 2007-08 school year, Respondent was hired to teach reading at Westridge Middle School. This was her third year under an annual contract. At the end of the school year, Respondent received "satisfactory" in classroom management and discipline and, in the remaining areas, "effective," which is the highest rating. This evaluation contains no comments. For the 2008-09 school year, Respondent returned to teach reading at Westridge Middle School, now with a professional service contract. However, she found at the school a new principal and assistant principal, who imposed new demands on the teachers. In the middle of the 2008-09 school year, the new assistant principal was relocated to an office that was in close proximity to Respondent's classroom. The assistant principal noticed immediately that Respondent's classroom management skills were not well developed, as her students were often unruly and disruptive. On separate occasions, the assistant principal saw, during class, one student climb atop a filing cabinet and another student throw a football across the room. In neither case did Respondent redirect or discipline the student who was atop the filing cabinet or the student who was tossing the football. Nor did these omissions seem isolated. The assistant principal noted that, during all of her observations, Respondent never redirected a misbehaving student; instead, she ignored the student and merely continued to speak to the class, as though the student were not misbehaving. During this school year, only 23% of Respondent's students passed the FCAT. The assistant principal testified that this was an unacceptable percentage. However, the assistant principal believed, probably incorrectly, that all of Respondent's classes were advanced reading, so her testimony as to the significance of a 23% pass rate is of no value. However, 77% of Respondent's students dropped a reading level of performance, as measured by FCAT. This is unacceptable and obviously does nothing to dispel doubts about Respondent's ability to teach or manage a classroom. During one observation, the assistant principal noted that Respondent was unable to use the reading comprehension tool known as "KWL," which helps a student structure his reading experience based on what the student already knows, what the student wants to learn, and what the student has learned after completing the reading assignment. During another observation, the assistant principal saw that Respondent had misdefined words on the vocabulary board. During another observation, the assistant principal saw that the displayed teaching objective bore no relationship to anything that Respondent was trying to teach. During several observations, the assistant principal saw that Respondent's poor classroom management skills interfered with instruction, and her poor instructional skills interfered with classroom management. Toward the end of the 2008-09 school year, the principal placed Respondent on a Personal Improvement Plan (PIP). However, Respondent's classroom performance did not improve under the PIP. By the end of the 2008-09 school year, the assistant principal had access to a broader range of data concerning student achievement in Respondent's class during the school year. Reading classes produce eight measures of student performance, including the SRA-developed Jamestown Reading Series that features biweekly assessment testing and the district-wide Edusoft benchmark tests. After examining the data for Respondent's classes, the assistant principal correctly determined that Respondent's students had not performed adequately during the school year. At the end of the 2008-09 school year, Respondent received "unsatisfactories" in all six areas. The comments under classroom management and discipline are: [Respondent] needs to improve on all aspects of classroom management and discipline . . . . [Respondent] has been on an Improvement Plan and has shown no improvement. Administration, County and State Personnel have concerns regarding the safety of students in the classroom due to lack of control and management. The comments under planning and delivering instruction indicate that there was not any improvement in instruction, and the "delivery of instruction is so weak that all of the objectives in this domain are unsatisfactory." The comments under assessment of student performance are: "There is no assessment of students in this class. Assessments that are done on a school wide level are not used by [Respondent] to drive instruction. [Respondent's] students have shown very little gain in reading throughout the school year." For the four school years ending with the 2008-09 school year, Respondent twice had not been invited to return to a school for the following year, had received an unfavorable preliminary assessment two months into one of her new jobs, and had had her worst year during the 2008-09 school year. With one exception, Respondent's assessments revealed a pattern of poor classroom management and inadequate instruction skills. The exception is Respondent's final assessment for her first year at Westridge, which paints a picture of competence, suggesting either that Respondent is capable of performing adequately and several times has chosen not to do for extended periods of time or incompetence on the part of the Westridge administration team, which, as noted above, experienced some changes at the top for the 2008-09 school year. On the present record, the latter is more likely than the former. Respondent's take on her first four years employed by Petitioner is to deny any problems. Respondent attributed her placement on a PIP due the fact that the area superintendent happened to see the fight between two boys, as they were entering Respondent's class. Although Respondent may not have borne any responsibility for the fighting boys, her explanation ignores the problems that Respondent had teaching and the declining achievement of her students, both of which amply justified placing her on a PIP. Respondent claimed that she was not invited back to one school due to the opening of a new school nearby; she did not address why she was not invited back to the second school. Her complaint that the Westridge administration offered her little support during the PIP, when compared to the support she later received at Freedom High School, is plausible, although it misses the distinction between a PIP and a Probationary Performance Plan, which, as noted below, she was on while working at Freedom, but not while working at Westridge. For obvious reasons, but pursuant to a mechanism that is not clearly described in the record, Respondent did not return to Westridge for the 2009-10 school year and found a job instead at Freedom High School. Respondent claims that she could not secure an appropriate placement due to surgery that immobilized her for much of the summer of 2009. For whatever reason, the only available job for Respondent for the 2009-10 school year was teaching reading to six classes of 11th-grade students, most of whom had failed the FCAT. Although certified in K-12 reading, Respondent was uncomfortable teaching high school reading, so, when she learned of her new assignment, she told district staff that she had never taught high school. District staff told Respondent that this was the only available opening, and, if Respondent did not want the job, she could look around on her own for a teaching job. Perhaps because of the composition of the classes and the urgent need to assist these students to pass the FCAT when they retook it, Respondent's reading classes at Freedom were highly structured. On Mondays and Tuesdays, she took her students to the computer lab, where they worked on Reading Plus, which is a computer-assisted reading program that diagnoses a student's reading level and, using this information, customizes instruction for that student. The program is designed to develop eye coordination, provide guided reading, increase reading fluency, and expand vocabulary and comprehension. On Wednesdays and Fridays, Respondent taught her class using the Edge program, which is an integrated language-arts textbook that provides about 14 teaching modules, weekly lessons, and built-in student assessments. On Thursdays, Respondent delivered differentiated instruction to groups of students based on ability and interest levels. Although far from self-executing, this highly structured reading curriculum reduced demands on Respondent in terms of what to teach and even how to teach. On Mondays and Tuesdays, she mostly had to supervise the students while they worked on their reading at computers. On Wednesdays and Fridays, Respondent had more latitude in delivering instruction, but still relied substantially on the Edge instructional materials. Only on Thursdays was Respondent required to plan curriculum and deliver instruction without substantial restrictions. Freedom also employed a reading coach, who trained Respondent on the above-described software programs, two reading-assessment programs, and an online program for grading and parental communications. The assessment programs and components within multifunctional reading programs also provided an unusually large source of data concerning the achievement of Respondent's students. The reading coach is an important witness. Not part of administration, the reading coach was more of a peer who worked closely with Respondent, often in Respondent's classroom while she or the reading coach taught the class. The reading coach had a unique opportunity to observe Respondent under relatively natural conditions in which Respondent would not consider herself under observation. The reading coach observed Respondent's students in the reading computer lab. While some students were engaged, others were exploring internet sites, watching ESPN videos, playing computer games, or listening to music--all without any attempt by Respondent to redirect them. Checking the site usage reports, the reading coach found that Respondent's classes did not make reasonable progress on the Reading Plus program, even though the reading coach kept working with Respondent to find ways to get her students back on schedule. On August 31, 2009, the reading coach modeled appropriate teaching in Respondent's first class, co-taught with Respondent in her second class, and left Respondent to teach her third class. The reading coach was not in the classroom for the first half of the third class. When she returned, mid-way through the period, she found Respondent, struggling to operate an overhead projector, had not even begun teaching the lesson, and the classroom was in "chaos." By the time that Respondent figured out the overhead projector, there were only five minutes remaining in the period, so Respondent never taught any of the lesson. It is difficult to attribute this incident substantially to bad luck because the reading coach reported that, when co-teaching with Respondent, the reading coach had to do much more of the teaching, as Respondent did not assume her share of the teaching duties. On another occasion, the reading coach entered Respondent's classroom and saw the students talking among themselves, off-topic, and Respondent talking over them, as though she did not care if the students were learning anything. This is startlingly similar to an observation of the assistant principal at Westridge. There is no chance that the reading coach could have known that this was an observation of the assistant principal at Westridge. Instead, this is clear evidence of a recurring dysfunctional teaching "technique" of Respondent. As soon as Respondent arrived at Freedom, the principal placed her on another PIP due to her failure to complete the PIP at Westridge satisfactorily. Dated August 17, 2009, the PIP includes an expected completion date of January 6, 20[10] and provides, for each of the six evaluation areas, indicators to be improved, improvement objectives, action plan/timelines, and assistance to be provided. For example, for classroom management and discipline, the indicators include stopping misconduct, maintaining instructional momentum, and starting instruction promptly. The improvement objectives include posting and implementing a positive behavior plan, promptly stopping misconduct, and planning lessons that engage the students for the entire period. The action plan requires meeting with a school dean and attending specified meetings. The assistance includes the assignment of a mentor and weekly observations with feedback. Part of the action plan for curriculum knowledge is to attend training in Reading Plus and Edge and obtain additional training from the reading coach. Also on August 17, 2009, the Freedom principal gave Respondent a 90-day probationary performance notice. The letter states that, pursuant to section 1012.34, Florida Statutes, Respondent had 90 calendar days, excluding school holidays and vacations, to correct the deficiencies cited in the letter. After the principal placed Respondent on another PIP and performance probation simultaneously, he and the other administrators undertook numerous observations of Respondent in the classroom. For each observation, the observer completed a standardized observation instrument. After each observation, the observer conducted a meeting with Respondent, usually a couple of days after the observation, to go over the observation in detail and make specific recommendations. On August 27, 2009, the principal conducted the first observation. His first negative observation was that Respondent told the class to pair up "with somebody." By failing to assign the pairings herself or use some other method to exclude socialization, she implicitly invited the students to become loud and unfocused, as they searched for friends. While reading a passage to the students--a technique endorsed by the principal--Respondent made four errors, and the principal witnessed the students' dismissive reactions to the teacher's reading mistakes. Once the paired activity began, the principal noticed that the students began to discuss off-topic matters and ignored Respondent's directive to read quietly. In a few minutes, 11 of the 18 students were disengaged and loudly discussing irrelevant matters--a process that would have been minimized if Respondent had established specific performance parameters, rather than left the task open-ended. An assistant principal observed Respondent on September 2, 2009, and witnessed her respond hostilely to a student's question about the nature of a character in a reading assignment. The bell rang while Respondent was trying to sum up the classwork. As soon as the bell rang, the students started to leave the classroom, although Respondent was still addressing them. An assistant principal observed Respondent on September 10, 2009, and noted that Respondent followed a "sound sequential order" and "stayed focused on the material." His only criticism was she used a monotone, deadpan delivery. Another administrator observed Respondent on September 17, 2009. He noticed that her lesson objective was clearly stated on the board, and she exhibited best practices by circulating through the room to ensure that students remained focused on their assignment. On September 21, 2009, an assistant principal observed Respondent. This class took place in the computer lab. Respondent had problems with a couple of students, but generally performed well, circulating through the room and assisting students, as needed. The single problem was Respondent's failure to control one or two of the students, whose ongoing impudence suggested a need for an office referral. On September 30, 2009, the principal observed Respondent. Respondent had a learning objective posted. She also used bellwork appropriately in duration and subject. The prime problem during the early part of the class was a subtle one: Respondent missed repeated opportunities to deliver instruction at a higher performance level. On October 5, 2009, another administrator observed Respondent in the computer lab. When one student released gas audibly to gain attention, Respondent appropriately admonished him, sent him to the dean's office, and restored order within one minute. On October 21, 2009, an assistant principal observed Respondent and noticed that she had posted the learning objective. When she assigned bellwork at the start of class, some of the students went off-task; Respondent redirected them, but was only partly successful. Eleven minutes into class, students were holding loud, off-topic conversations across the entire class, and Respondent was not attempting to redirect them. Much later into the class, more students were engaged, but at least four had not engaged for long periods of time. On October 29, 2009, an assistant principal observed Respondent when she was teaching the Edge textbook. At the start of class, Respondent directed the students to do bellwork, but each of the students ignored her; eventually, only two of twenty students completed the assignment. When she told them to stand for the Pledge of Allegiance, six remained seated, and some talked loudly during the pledge. Respondent merely tried to talk over them and told them to stand. Respondent did not deliver the lesson very well. Many students talked among themselves, one drew, some slept, and some did other school work; yet, Respondent continued to speak, as though all were attentive. She occasionally addressed the misbehavior, but the misbehaving students ignored her, and she ignored their insubordination. On November 6, 2009, an administrator observed Respondent and saw that she had the bellwork written on the board for the students to see as they arrived. Two students in the back were totally disengaged, but Respondent ignored them. Respondent tried to teach from the bellwork, but the class was noisy. Finally, the observing administrator sent one of the misbehaving boys in the back of the classroom to the dean's office. The administrator noted that the class was much better after the student was removed and suggested, as he had after his previous observation, that Respondent prohibit certain students from sitting together. On November 12, 2009, an assistant principal observed Respondent. At the start of class, Respondent told the students to sit down, but many remained standing and talking. Respondent again had some problems controlling the class. One student sneezed, and nearly every student in the room responded loudly, over the next ten seconds, with "bless you." After fumbling with the overhead projector for awhile, Respondent began teaching the lesson, ignoring four pairs of students talking or passing notes. After assigning small-group work, only ten of twenty-three students were working. After Respondent redirected the class to do their work, five minutes later, only eight students were working. By this time, Respondent's circulating through the class was ineffective because the students had seen that she did not follow through on discipline. On December 4, 2009, the principal observed Respondent. As he walked toward the back of the room, he woke up one student whom he found sleeping in class. This was an important class devoted to performing a benchmark assessment. At the start of the test, Respondent misstated the time, shortening the students' time on this time-pressured test by four minutes. Respondent also expressed uncertainty with one procedure within the test. Respondent appropriately circulated during the test, but failed to require the students to remove their backpacks. On December 9, 2009, an assistant principal observed Respondent and found a lesson objective posted. Respondent started to go over the bellwork, but many students were talking. Respondent told the class that she would wait for them to become silent, but she resumed speaking before the students quieted themselves. In teaching the meaning of "contemplate," Respondent asked for antonyms. One student replied, "just do it." Respondent failed to follow up on this answer, instead shutting down the student by saying, "We'll go over it later because you're a little confused right now." Belatedly, 20 and 30 minutes into class, Respondent dealt with a student who had been continuously talking and a student who had been continuously ignoring the assignments and writing, purposelessly, in a spiral notebook. Students began to leave before the bell rang, but Respondent required them to sit down. The assistant principal noted that Respondent "is not consistent in addressing behavior, calling on students, or even collecting homework" and characterized the delivery of instruction as "poor." On January 6, 2010, the principal and an assistant principal met with Respondent and advised her that this was the last day of the 90-day plan. The following day, they met, and the principal informed Respondent that she had not shown adequate improvement. The principal signed a copy of the plan and checked the box that adequate improvement had not been shown. Respondent signed the plan, but immediately claimed that she did not know what she was signing. On January 13, 2010, the principal sent Respondent a brief letter stating that she had failed to correct the performance deficiencies cited in her 90- day plan, but omitting any final assessment or evaluation. Petitioner has proved incompetency on the part of Respondent, but not willful neglect of duties. It appears that, in terms of instruction, Respondent was doing the best that she could and incorporated many of the suggestions of the observers at Freedom. And a close examination of the record reveals some successes in Respondent's classroom instruction while at Freedom. Respondent dutifully adhered to school instructional policies, such as in posting learning objectives and using bellwork and word boards, but she clearly lacked sufficient talent to elevate the classroom transactions to another level by infusing them with more concentrated, more engaged instruction. This would be a very difficult case, if instruction were Respondent's lone shortcoming. Her uninspired teaching, despite her conscientious effort to incorporate the instructional suggestions of her observers, was eventually overwhelmed by her utter failure to manage her classroom, so that even if she were making small instructional gains, they were offset by the deteriorating behavior of her students, as they learned over the course of four months, that Respondent would not enforce discipline in the classroom. Respondent blames her difficulties in classroom management on the nature of the students, who as FCAT-repeaters may be only intermittently motivated to perform academically, and the challenge of teaching the older students in high school. Yet, she had the same problems at one and probably two middle schools. Respondent's lack of classroom management skills is a grave, longstanding problem. During the fall of 2009, Respondent never established her dominant role in the classroom. Habitual misbehavior was met with the same truncated array of responses that Respondent appropriately displayed in the face of isolated, minor misbehavior: circulating through the classroom, standing in closer proximity to the misbehaving student, stopping instruction until the misbehaving student refocused, and, worst of all, talking over the misbehaving students, as though ignoring them would end their misbehavior. She portrayed herself as powerless to deal with disruptive classroom behavior. It is entirely unclear why Respondent never gathered herself together, assumed her leadership responsibilities in the classroom, and started sending students to the dean's office. If it seems, in retrospect, that this practice would have left her, after a couple of months, teaching only three or four students, this is only because of Respondent's failure to resort in a timely fashion to more effective discipline, as she allowed the disorder in her classroom to establish itself as a fixture. The obvious consequence of Respondent's failure to maintain classroom order is that learning was impeded and, at times, impossible. A teacher with stronger instructional skills would have found it difficult to teach effectively after abandoning his leadership duties and yielding control of the classroom to misbehaving students. Given Respondent's more modest teaching skills, instruction was nearly impossible, and students--both misbehaving and compliant--were denied the academics that they needed, urgently, if they were to pass the FCAT that they were soon to retake. As it was, only about 32% of her students passed the FCAT retake. An acceptable passage rate for this retake was 50%. The benchmark assessment, which Respondent had difficulty administering, showed that almost none of her students was poised to make one year's progress while assigned to Respondent's classroom. These data underscore the finding of incompetency and also support a finding that Respondent failed to correct the performance deficiencies during her 90-day probationary period. The 2009-10 contract between Petitioner and The Orange County Classroom Teachers Association (Contract) contains several relevant provisions for this case. First, it vests in the classroom teacher considerable authority to ensure that misbehaving students are disciplined. Contract, Art. VII. Although the Contract also requires a teacher to "keep order in the classroom," Art. VII.E., it also authorizes a teacher to suspend a student from her class and guarantees the teacher some role in the administrative handling of her disciplinary referrals. Art. VII.E.2.-6. The Contract provides that any teacher may be suspended or dismissed at any time during the year, provided that the charges against him are based on, among other things, incompetence or willful neglect of duty. Contract, Art. XII.A.2. For dismissal for "incompetence," the Contract requires certain procedures "prior to the filing of formal written charges." Art. XII.D.5. These procedures include written notification of the deficiencies, a timeframe for improvement, a set of specific recommendations for improvement, a reasonable period of time "not exceeding three teaching months" to allow for correction of deficiencies, a formal evaluation of the teacher's performance at the end of the time to correct performance deficiencies, and a meeting between the superintendent and the teacher to summarize the results of the evaluation.
Recommendation It is RECOMMENDED that the Orange County School Board enter a final order terminating Respondent's professional service contract and dismissing Respondent on the grounds of just cause in the form of incompetency and failing to timely correct performance deficiencies. DONE AND ENTERED this 6th day of June, 2011, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 6th day of June, 2011. COPIES FURNISHED: John C. Palmerini, Esquire Orange County School Board 445 West Amelia Street Orlando, Florida 32801 Tobe M. Lev, Esquire Egan, Lev & Siwica, P.A. Post Office Box 2231 231 East Colonial Drive Orlando, Florida 32801 Lois Tepper, Acting General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Ron Blocker, Superintendent Orange County School Board 445 West Amelia Street Orlando, Florida 32801
