The Issue The issues in this case are whether Respondent satisfactorily corrected specified performance deficiencies within the 90-day probation period prescribed by Section 1012.34(3)(d), Florida Statutes, and, if not, whether Respondent's employment should be terminated.
Findings Of Fact One of the statutory duties of Petitioner Miami-Dade County School Board ("Board") is to evaluate the performance of every teacher employed in the Miami-Dade County School District ("District"), at least once per year. To accomplish this, the Board uses a personnel assessment system known as "PACES," which is an acronym for Professional Assessment and Comprehensive Evaluation System. PACES is the product of collective bargaining between the Board and the teachers' union, and it has been duly approved by the Florida Department of Education. The Board's evaluation procedure begins with an observation of the subject teacher, conducted by an administrator trained in the use of PACES. On a score sheet called the Observation Form for Annual Evaluation ("OFAE"), the evaluator rates the teacher's performance on 44 independently dispositive "indicators." The only grades assignable to the respective indicators are "acceptable" and "unacceptable"; thus, the evaluator's decision, for each indicator, is binary: yes or no, thumbs up or thumbs down.1 A negative mark on any one of the 44 indicators results in an overall performance evaluation of "unsatisfactory." For the teacher under observation, therefore, each indicator constitutes, in effect, a pass/fail test, with his or her job hanging in the balance. If the teacher passes all 44 of the independently dispositive indicators, then the teacher's performance is rated "satisfactory" and the evaluative process is complete. If, on the other hand, the teacher is given a failing grade on one or more of the 44 indicators and hence adjudged an unsatisfactory performer, then the initial observation is deemed to be "not of record" (i.e. inoperative) and a follow-up, "for the record" evaluation is scheduled to occur, upon notice to the affected teacher, about one month later. In the meantime, the teacher is offered the assistance of a Professional Growth Team ("PGT"), a group of peers who, having received special training in PACES, are in a position to help the affected teacher correct performance deficiencies in advance of the follow-up evaluation. The follow-up evaluation is conducted in the same manner as the initial "not of record" evaluation. If the teacher passes all 44 indicators, then his performance is deemed satisfactory and the evaluative process is complete. If he fails one or more of the indicators, however, then the teacher is placed on probation for a period of 90 calendar days (excluding vacations and holidays). The probation period is preceded by a formal Conference-for-the-Record ("CFR"), at which notice of the specific performance deficiencies is provided to the teacher. As well, the teacher is given a Professional Improvement Plan ("PIP"), wherein particular remedial tasks, intended to help the teacher correct the noted performance deficiencies, are assigned. During the performance probation, the teacher must be formally observed at least twice, by an evaluator using the OFAE. If, on any of these probationary observations, the teacher fails at least one indicator, then another PIP is prepared and offered. Within 14 days after the end of probation, a "confirmatory evaluation" is conducted, using the OFAE. The purpose of the confirmatory evaluation is to determine whether the noted performance deficiencies were corrected. If they were, then the teacher's performance is rated "satisfactory." If not, the principal then makes a recommendation to the superintendent whether to continue or terminate the teacher's employment. As mentioned above, a PACES evaluation takes account of 44 crucial indicators.2 The indicators are organized under "components." The 44 outcome determinative indicators fall within 21 components, which are identified on the OFAE. These components are organized, in turn, under "domains," of which six are identified on the OFAE. Each domain has been assigned a Roman numeral identifier: I through VI. The components are distinguished alphabetically: A, B, C, etc. The indicators are numbered using Arabic numerals. Each specific indicator is named according to the Roman numeral of its domain, the letter of its component, and its own Arabic number. Thus, for example, the first indicator under Component A of Domain I is referred to as "I.A.1." Notwithstanding the PACES taxonomy, the classifications of "domain" and "component" are useful only as a means of organizing the indicators. This is because a teacher does not pass or fail a performance evaluation at the domain level or at the component level; rather, he passes or fails at the indicator level, for, again, each of the 44 indicators is independently dispositive under PACES.3 Thus, each of the determinative 44 indicators is of precisely equal weight. None is more important or less important than another.4 B. At all times material to this case, Respondent Sergio H. Escalona ("Escalona") was a teacher in the District. From 2000 until May 19, 2004, when the Board suspended him pending termination of employment, Escalona was a science teacher at Miami Springs Senior High School ("Miami Springs"), a typical high school in the District. During the 2003-04 school year, an evaluator observed Escalona in his classroom on five separate occasions, each time using the OFAE. The dates of these evaluations were, and the names of the respective evaluators are, as follows: Evaluation Date Evaluator November 5, 2003 Carlos M. del Cuadro, Assistant Principal, Miami Springs December 2, 2003 Mr. del Cuadro January 16, 2004 Douglas P. Rodriguez, Principal, Miami Springs February 17, 2004 Deborah Carter, Assistant Principal, Miami Springs April 5, 2004 Mr. Rodriguez The Board contends that Escalona failed all five evaluations; the first, however, was deemed "not of record" and thus is relevant only insofar as it opened the door to the process that followed. The following table shows, for each evaluation (including the first), the indicators that the respective evaluators thought Escalona had failed: IA1 IA2 IB1 IB3 IE3 IF1 IF2 IIA1 IIA3 IIB2 IIB4 11-05-03 x x x x x x x 12-02-03 x 01-16-04 x x x 02-17-04 x x x x 04-05-04 x x x IID1 IID3 IID4 IIE1 IIE2 IIE5 IIIA1 IIIA3 IIIB1 IIIB3 IIIB4 11-05-03 x x x x x x 12-02-03 x x 01-16-04 x x 02-17-04 x 04-05-04 x x x x x IVA3 IVA 5 IVA6 IVB1 IVB2 IVB 3 IVC2 IVD1 IVD3 IVD6 IVE2 11-05-03 x x x x x x x x x 12-02-03 x x x 01-16-04 x x x x x x 02-17-04 x x x x x 04-05-04 x ? x ? x ? x x IVE4 VA1 VA4 VB1 VB2 VC1 VIA2 VIB1 VIB3 VIC2 VIC4 11-05-03 x x x x x x x x 12-02-03 x x x x 01-16-04 x x x x x x x 02-17-04 04-05-04 x ? ? ? x ? x x Because Mr. del Cuadro identified 10 performance deficiencies on December 2, 2003, Escalona was placed on performance probation, pursuant to the procedure described in detail above. Mr. Rodriguez held a CFR on December 9, 2004, to review with Escalona the identified deficiencies and explain the procedures relating to the 90-day probation. Following the CFR, Escalona was given written notice of unsatisfactory performance, in the form of a Summary of Conference-For-The-Record And Professional Improvement Plan (PIP), dated December 9, 2003 ("Summary"). In the Summary, Mr. Rodriguez charged Escalona with failure to satisfactorily perform the following PACES indicators: II.B.4, II.E.5, III.B.3, IV.A.5, IV.B.1, IV.D.1, V.A.1, V.A.4, V.B.1, and VI.A.2. (These 10 indicators are highlighted vertically in the table above.) At the same time, Escalona was given a PIP, and a PGT was assembled to provide assistance. Following the confirmatory evaluation on April 5, 2004, based on which Mr. Rodriguez identified 24 deficiencies as shown in the table above, Mr. Rodriguez notified the superintendent that Escalona had failed to correct noted performance deficiencies during a 90-day probation and recommended that Escalona's employment be terminated. The superintendent accepted Mr. Rodriguez's recommendation on April 12, 2004, and shortly thereafter notified Escalona of his decision to recommend that the Board terminate Escalona's employment contract. On May 19, 2004, the Board voted to do just that. C. Of the four evaluations "for the record," the two that were conducted during Escalona's probation (on January 16, 2004, and February 17, 2004) are presently relevant mainly to establish that the proper procedure was followed——a matter that is not genuinely disputed. The substance of these probationary evaluations cannot affect the outcome here because even if Escalona's performance had been perfect during probation, Mr. Rodriguez nevertheless found deficiencies during the post- probation, confirmatory evaluation, which is the only one probative of the dispositive question: Had Escalona corrected the noted performance deficiencies as of the two-week period after the close of the 90 calendar days' probation? In view of the ultimate issue, the evaluation of December 2, 2003, is primarily relevant because it established the 10 "noted performance deficiencies" that Escalona needed to correct. For reasons that will be discussed below in the Conclusions of Law, the Board cannot terminate Escalona's employment based on other deficiencies allegedly found during probation or at the confirmatory evaluation; rather, it must focus exclusively on those 10 particular deficiencies which Escalona was given 90 calendar days to correct. Thus, stated more precisely, the ultimate question in this case is whether any of the 10 specific deficiencies identified in the Summary provided to Escalona on December 9, 2003, persisted after the 90-day probation. As it happened, Mr. Rodriguez determined, as a result of the confirmatory evaluation on April 5, 2004, that Escalona had corrected three of the 10 noted performance deficiencies, for Mr. Rodriguez gave Escalona a passing grade on the indicators II.B.4, II.E.5, and III.B.3. The remaining seven deficiencies upon which termination could legally be based are identified in the table above with the "?" symbol. It is to these seven allegedly uncorrected deficiencies that our attention now must turn. The Board contends, based on Mr. Rodriguez's confirmatory evaluation of April 5, 2004, that Escalona was still, as of that date, failing satisfactorily to perform the following PACES indicators: 5: The purpose or importance of learning tasks is clear to learners. 1: Teaching and learning activities are appropriate for the complexity of the learning context. IV.D.1: Learners have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. V.A.1: Learners are actively engaged and/or involved in developing associations. 4: Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. 1: A variety of questions that enable thinking are asked and/or solicited. VI.A.2: Learner engagement and/or involvement during learning tasks is monitored. The only descriptive evidence in the record regarding Escalona's performance on April 5, 2004——and hence the only evidence of historical fact upon which the undersigned can decide whether Escalona failed adequately to perform the seven indicators just mentioned——consists of Mr. Rodriguez's testimony. Mr. Rodriguez, who had observed Escalona in the classroom for 50 minutes that day, recounted at final hearing what he had seen as follows: Again, there were students that were simply not engaged at all in learning. For example, there was a student that put his head down at a particular time. He slept for about fifteen minutes. Mr. Escalona never addressed the student, never redirected the learning, never tried to engage that student. Overall the students continued to pass notes in class. The students simply——there was really no plan at all. That was get up, give a lecture. Kids were not paying attention. No redirection for student learning. Questions again very basic. Most of the questions had no response from the students. And [they] just seemed very disinterested, the students did, and the lesson was just not acceptable. Final Hearing Transcript at 103-04. To repeat for emphasis, any findings of historical fact concerning Escalona's performance during the confirmatory evaluation must be based on the foregoing testimony, for that is all the evidence there is on the subject.5 Mr. Rodriguez did not explain how he had applied the seven indicators quoted above to his classroom observations of Escalona to determine that the teacher's performance was not up to standards. D. The seven indicators at issue in this case, it will be seen upon close examination, are not standards upon which to base a judgment, but rather factual conditions ("indicator- conditions") for which the evaluator is supposed to look. If a particular indicator-condition (e.g. the purpose of learning tasks is clear to learners) is found to exist, then the evaluator should award the teacher a passing grade of "acceptable" for that indicator (in this example, Indicator IV.A.5); if not, the grade should be "unacceptable." The indicator-conditions are plainly not objective historical facts; they are, rather, subjective facts, which come into being only when the evaluator puts historical facts against external standards, using reason and logic to make qualitative judgments about what occurred. Subjective facts of this nature are sometimes called "ultimate" facts, the answers to "mixed questions" of law and fact. To illustrate this point, imagine that the class Mr. Rodriguez observed on April 5, 2004, had been videotaped from several different camera angles. The resulting tapes would constitute an accurate audio-visual record of what transpired in Escalona's class that day. Anyone later viewing the tapes would be able to make detailed and accurate findings of objective historical fact, including words spoken, actions taken, time spent on particular tasks, etc. But, without more than the videotapes themselves could provide, a viewer would be unable fairly to determine whether, for example, the "[t]eaching and learning activities [had been] appropriate for the complexity of the learning context" (Indicator IV.B.1), or whether the questions asked adequately "enable[d] thinking" (Indicator V.B.1).6 This is because to make such determinations fairly, consistently, and in accordance with the rule of law requires the use of standards of decision, yardsticks against which to measure the perceptible reality captured on film. Another term for standards of decision is "neutral principles." A neutral principle prescribes normative conduct in a way that permits fair judgments to be made consistently—— that is, in this context, enables the reaching of similar results with respect to similarly performing teachers most of the time. A neutral principle must not be either political or results oriented. It must be capable of being applied across- the-board, to all teachers in all evaluations. In the unique milieu of PACES, neutral principles could take a variety of forms. One obvious form would be standards of teacher conduct. Such standards might be defined, for example, with reference to the average competent teacher in the District (or school, or state, etc.). In an adjudicative proceeding such as this one, expert testimony might then be necessary to establish what the average competent teacher does, for example, to monitor learner engagement and/or involvement during learning tasks (Indicator VI.A.2) or to create opportunities to learn at more than one cognitive level (Indicator IV.D.1).7 Other standards might be definitional. For example, to determine whether teaching and learning activities are appropriate (Indicator IV.B.1) practically demands a definition of the term "appropriate" for this context. Still other standards might be framed as tests, e.g. a test for determining whether a question enables thinking (Indicator V.B.1). However the neutral principles are framed, at bottom there must be standards that describe what "satisfactory" performance of the indicators looks like, so that different people can agree, most of the time, that the indicator- conditions are present or absent in a given situation——and in other, similar situations. Without neutral principles to discipline the decision-maker, the indicators can be used as cover for almost any conclusion an evaluator (or Administrative Law Judge) might want to make. In this case, the record is devoid of any persuasive evidence of neutral principles for use in determining, as a matter of ultimate fact, whether the conditions described in the seven relevant indicators were extant in Escalona's classroom on April 5, 2004, or not. E. In this de novo proceeding, the undersigned fact- finder is charged with the responsibility of determining independently, as a matter of ultimate fact, whether, as of the two-week period following probation, Escalona had corrected all of the performance deficiencies of which he was notified at the outset of probation. The only evidence of Escalona's post- probation teaching performance consists of Mr. Rogriguez's testimony about his observation of Escalona for 50 minutes on April 5, 2004, which was quoted above. Mr. Rodriguez's testimony gives the undersigned little to work with. His observations can be boiled down to four major points, none of which flatters Escalona: (a) Escalona lectured, and the students, who seemed disinterested, did not pay attention——some even passed notes; (b) Escalona asked "very basic" questions, most of which elicited "no response"; (c) one student slept for 15 minutes, and Escalona left him alone; (d) the lesson was "just not acceptable." On inspection, these points are much less helpful than they might at first blush appear. One of them——point (d)——is merely a conclusion which invades the undersigned's province as the fact-finder; accordingly, it has been given practically no weight. The only facts offered in support of the conclusions, in point (a), that the students "seemed" disinterested and were "not paying attention" to Escalona's lecture is the testimony that some students passed notes, and some (many?) did not answer the teacher's questions. But this is a rather thin foundation upon which to rest a conclusion that the students were bored because Escalona's teaching was poor. And even if they were (or looked) bored, is it not fairly common for teenaged high-school students to be (or appear) bored in school, for reasons unrelated to the teacher's performance? There is no evidence whatsoever that student boredom (or note passing or non- responsiveness) features only in the classrooms of poorly performing teachers. As for the supposedly "basic" nature of Escalona's questions, see point (b), the undersigned cannot give Mr. Rodriguez's testimony much weight, because there is no evidence as to what the questions actually were or why they were so very basic. Finally, regarding point (c), the fact that a student slept during class is, to be sure, somewhat damaging to Escalona, inasmuch as students should not generally be napping in class, but without additional information about the student (who might have been sick, for all the undersigned knows) and the surrounding circumstances the undersigned is not persuaded that the sleeping student is res ipsa loquitur on the quality of of Escalona's teaching performance. There is certainly no evidence that students doze only in the bad teachers' classes. More important, however, than the paucity of evidence establishing the objective historical facts concerning Escalona's performance on April 5, 2004, is the failure of proof regarding neutral principles for use in determining the existence or nonexistence of the relevant indicator-conditions. Even if the undersigned had a clear picture of what actually occurred in Escalona's classroom that day, which he lacks, he has been provided no standards against which to measure Escalona's performance, to determine whether the indicator- conditions were met or not. The absence of evidence of such standards is fatal to the Board's case. To make ultimate factual determinations without proof of neutral principles, the undersigned would need to apply standards of his own devising. Whatever merit such standards might have, they would not be the standards used to judge other teachers, and hence it would be unfair to apply them to Escalona.
Conclusions The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 1012.34(3)(d)2.b.(II), Florida Statutes. When a teacher contests a superintendent's recommendation of dismissal, as here, the ensuing hearing must be conducted "in accordance with chapter 120." See § 1012.34(3)(d)2.b.(II), Fla. Stat. A "chapter 120 proceeding [entails] a hearing de novo intended to 'formulate final agency action, not to review action taken earlier and preliminarily.'" Young v. Department of Community Affairs, 625 So. 2d 831, 833 (Fla. 1993)(quoting McDonald v. Department of Banking & Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977)). Thus, the Board's burden in this case was not merely to persuade the undersigned that the evaluators sincerely believed, after conducting a legally sufficient assessment, that Young's performance was deficient, nor even to persuade the undersigned that the evaluators' judgment was factually and legally tenable. Rather, the Board's burden was to persuade the undersigned himself to find, independently, that Young's performance was deficient. Because this case is a proceeding to terminate a teacher's employment and does not involve the loss of a license or certification, the Board was required to prove the alleged grounds for Escalona's dismissal by a preponderance of the evidence. McNeill v. Pinellas County School Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School Bd. of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Bd. of Lake County, 569 So. 2d 883 (Fla. 3d DCA 1990). B. Section 1012.34, Florida Statutes, which governs the process for evaluating teachers, provides in full as follows: 1012.34 Assessment procedures and criteria.-- For the purpose of improving the quality of instructional, administrative, and supervisory services in the public schools of the state, the district school superintendent shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative, and supervisory personnel employed by the school district. The Department of Education must approve each district's instructional personnel assessment system. The following conditions must be considered in the design of the district's instructional personnel assessment system: The system must be designed to support district and school level improvement plans. The system must provide appropriate instruments, procedures, and criteria for continuous quality improvement of the professional skills of instructional personnel. The system must include a mechanism to give parents an opportunity to provide input into employee performance assessments when appropriate. In addition to addressing generic teaching competencies, districts must determine those teaching fields for which special procedures and criteria will be developed. Each district school board may establish a peer assistance process. The plan may provide a mechanism for assistance of persons who are placed on performance probation as well as offer assistance to other employees who request it. The district school board shall provide training programs that are based upon guidelines provided by the Department of Education to ensure that all individuals with evaluation responsibilities understand the proper use of the assessment criteria and procedures. The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate. Pursuant to this section, a school district's performance assessment is not limited to basing unsatisfactory performance of instructional personnel and school administrators upon student performance, but may include other criteria approved to assess instructional personnel and school administrators' performance, or any combination of student performance and other approved criteria. The procedures must comply with, but are not limited to, the following requirements: An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. The assessment must primarily use data and indicators of improvement in student performance assessed annually as specified in s. 1008.22 and may consider results of peer reviews in evaluating the employee's performance. Student performance must be measured by state assessments required under s. 1008.22 and by local assessments for subjects and grade levels not measured by the state assessment program. The assessment criteria must include, but are not limited to, indicators that relate to the following: Performance of students. Ability to maintain appropriate discipline. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field. Ability to plan and deliver instruction, including implementation of the rigorous reading requirement pursuant to s. 1003.415, when applicable, and the use of technology in the classroom. Ability to evaluate instructional needs. Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement. Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board. All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place. The individual responsible for supervising the employee must assess the employee's performance. The evaluator must submit a written report of the assessment to the district school superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than 10 days after the assessment takes place. The evaluator must discuss the written report of assessment with the employee. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file. If an employee is not performing his or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements: 1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time. 2.a. If the employee holds a professional service contract as provided in s. 1012.33, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following the receipt of the notice of unsatisfactory performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period. During the 90 calendar days, the employee who holds a professional service contract must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee who holds a professional service contract may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies. b. Within 14 days after the close of the 90 calendar days, the evaluator must assess whether the performance deficiencies have been corrected and forward a recommendation to the district school superintendent. Within 14 days after receiving the evaluator's recommendation, the district school superintendent must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the district school superintendent will recommend that the district school board continue or terminate his or her employment contract. If the employee wishes to contest the district school superintendent's recommendation, the employee must, within 15 days after receipt of the district school superintendent's recommendation, submit a written request for a hearing. The hearing shall be conducted at the district school board's election in accordance with one of the following procedures: A direct hearing conducted by the district school board within 60 days after receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. A majority vote of the membership of the district school board shall be required to sustain the district school superintendent's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days after receipt of the written appeal in accordance with chapter 120. The recommendation of the administrative law judge shall be made to the district school board. A majority vote of the membership of the district school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. The district school superintendent shall notify the department of any instructional personnel who receive two consecutive unsatisfactory evaluations and who have been given written notice by the district that their employment is being terminated or is not being renewed or that the district school board intends to terminate, or not renew, their employment. The department shall conduct an investigation to determine whether action shall be taken against the certificateholder pursuant to s. 1012.795(1)(b). The district school superintendent shall develop a mechanism for evaluating the effective use of assessment criteria and evaluation procedures by administrators who are assigned responsibility for evaluating the performance of instructional personnel. The use of the assessment and evaluation procedures shall be considered as part of the annual assessment of the administrator's performance. The system must include a mechanism to give parents and teachers an opportunity to provide input into the administrator's performance assessment, when appropriate. Nothing in this section shall be construed to grant a probationary employee a right to continued employment beyond the term of his or her contract. The district school board shall establish a procedure annually reviewing instructional personnel assessment systems to determine compliance with this section. All substantial revisions to an approved system must be reviewed and approved by the district school board before being used to assess instructional personnel. Upon request by a school district, the department shall provide assistance in developing, improving, or reviewing an assessment system. The State Board of Education shall adopt rules pursuant to ss. 120.536(1) and 120.54, that establish uniform guidelines for the submission, review, and approval of district procedures for the annual assessment of instructional personnel and that include criteria for evaluating professional performance. (Underlining and italics added). Under Section 1012.34(3), school districts must establish a primarily student performance-based procedure (or system) for assessing the performance of teachers. In other words, the method of accomplishing the assessment must be tailored to meet the goal of forming evaluative judgments about teachers' performance based mainly on the performance of their students. In clear terms, then, the legislature has announced that the primary (though not exclusive)8 indicator of whether a teacher is doing a good job is the performance of his students. If a teacher's students are succeeding, then, whatever he is doing, the teacher is likely (though not necessarily) performing his duties satisfactorily. It is plainly the legislature's belief that if we do not know how the teacher's students are performing, then we cannot make a valid judgment as to whether the teacher is performing his duties satisfactorily.9 The statute further mandates that, in assessing teachers, indicators of student performance——which performance is assessed annually as specified in Section 1008.22——must be the primarily-used data. (In contrast, evaluators are permitted, but not required, to make use of peer reviews in assessing teacher performance.) Section 1008.22, which is referenced specifically in Section 1012.34(3)(a), requires that school districts participate in a statewide assessment program, the centerpiece of which is the Florida Comprehensive Assessment Test ("FCAT"). See § 1008.22(3), Fla. Stat. The FCAT is a standardized test that is administered annually to students in grades three through 10. Id. Section 1008.22 is not concerned only with the FCAT, however. Subsection (7), for example, provides as follows: (7) LOCAL ASSESSMENTS.--Measurement of the learning gains of students in all subjects and grade levels other than subjects and grade levels required for the state student achievement testing program is the responsibility of the school districts. Thus, the school districts are charged with developing their own local assessment tools, to fill in the gaps left open by the statewide FCAT testing program. Section 1008.22(5) provides additionally that "[s]tudent performance data shall be used in . . . evaluation of instructional personnel[.]" Section 1012.34(3)(a) prescribes two and only two permissible measures of student performance for use in evaluating teachers: (a) the statewide FCAT assessments and (b) the gap-filling local assessments, both of which measures are required under Section 1008.22. It is clear that Sections 1012.34(3) and 1008.22 have at least one subject in common, namely, student performance-based assessment of teachers. Being in pari materia in this regard, Sections 1012.34 and 1008.22 must be construed so as to further the common goal. See, e.g., Mehl v. State, 632 So. 2d 593, 595 (Fla. 1993)(separate statutory provisions that are in pari materia should be construed to express a unified legislative purpose); Lincoln v. Florida Parole Com'n, 643 So. 2d 668, 671 (Fla. 1st DCA 1994)(statutes on same subject and having same general purpose should be construed in pari materia). When the requirements of Section 1012.34(3) are read together with Section 1008.22, several conclusions are inescapable. First, FCAT scores must be the primary source of information used in evaluating any teacher who teaches an FCAT- covered subject to students in grades three through 10. Second, school districts must develop, and annually administer, local assessments for subjects and grade levels not measured by the FCAT. Third, student performance data derived from local assessments must be the primary source of information used in evaluating teachers whose subjects are not covered on the FCAT and/or whose students do not take the FCAT. The absence of evidence in the record concerning the performance of Escalona's students either on the FCAT or on local assessments, as appropriate, see endnote 5, supra, deprives the undersigned of information that the legislature has deemed essential to the evaluation of a teacher's performance. Having neither state nor local assessments to review, the undersigned cannot find that Escalona's performance was deficient in the first place, much less whether he corrected the alleged performance deficiencies in accordance with Section 1012.34(3)(d). Without such findings, the Board cannot dismiss Escalona for failure to correct noted performance deficiencies. C. It was stated in the Findings of Fact above that the Board can terminate Escalona's employment only if, based on an assessment of his performance as of the two-week period following the 90 calendar days of probation, the teacher had failed to correct the particular performance deficiencies of which he had been formally notified in writing prior to probation; other alleged deficiencies, whether observed during probation or thereafter, cannot be relied upon in support of a decision to dismiss Escalona. Standing behind this observation is Section 1012.34(3)(d), Florida Statutes. The pertinent statutory language instructs that a teacher whose performance has been deemed unsatisfactory must be provided a written "notice of unsatisfactory performance," which notice shall include a description of "such unsatisfactory performance" plus recommendations for improvement in the "specific areas of unsatisfactory performance." The statute then specifies that the teacher must be allowed 90 calendar days "following the receipt of the notice of unsatisfactory performance" to correct "the noted performance deficiencies." Clearly, the "noted performance deficiencies" are the specific areas of unsatisfactory performance described in the notice of unsatisfactory performance. Finally, the statute mandates that the teacher shall be assessed within two weeks after the end of probation to determine whether "the performance deficiencies" have been corrected. It is clear, again, that "the performance deficiencies" are "the noted performance deficiencies" described in the written notice of unsatisfactory performance. See § 1012.34(3)(d)1. & 2.a., Fla. Stat. (emphasis added). The reason why a decision to terminate a poorly performing teacher must be based solely on the specific performance deficiencies described in the pre-probation notice of unsatisfactory performance is plain: allowing the school district to rely on subsequently observed deficiencies would defeat the teacher's unambiguous statutory right to have 90 post-notice calendar days in which to correct the noted performance deficiencies that triggered probation in the first place. This case exemplifies the problem posed by post-notice deficiencies. The notice of unsatisfactory performance (the Summary) that gave rise to Escalona's probation, which was based on Mr. del Cuadro's evaluation of December 2, 2003, charged the teacher with 10 specific performance deficiencies. By February 17, 2004, when Ms. Carter formally observed Escalona for the last time before the end of probation, Escalona had corrected all but one (Indicator IV.A.5) of the noted performance deficiencies——suggesting that he had made significant improvement. Unfortunately for Escalona, however, Ms. Carter believed that the teacher had exhibited nine deficiencies besides the noted performance deficiencies, with the net result that, near the end of probation, Escalona still had 10 deficiencies. Of these nine post-notice deficiencies, four (Indicators I.F.1, I.F.2, II.A.1, and IV.B.3) were recorded for the first time ever on February 17, 2004. Obviously, Escalona was not given 90 days to correct these four alleged deficiencies. Yet another three of the post-notice deficiencies reported by Ms. Carter (Indicators I.A.1, IV.A.6, and IV.B.2) had not been seen since Mr. Cuadro's initial evaluation of November 5, 2003. This initial evaluation, being "not of record," cannot count as a notice of unsatisfactory performance to Escalona. Hence he was not given 90 days to correct these three alleged deficiencies. For that matter, the remaining two post-notice deficiencies alleged to exist on February 17, 2004—— Indicators II.D.4 and IV.A.3——had not been observed, post- notice, until January 16, 2004, which means that Escalona did not have 90 days to correct them, either. For the above reasons, when assessing whether, in fact, Escalona had corrected the noted performance deficiencies as of the two-week period following probation, the undersigned focused, as he was required to do, exclusively on the 10 deficiencies described in the Summary, seven of which were alleged not to have been timely corrected. Having determined as a matter of fact that the evidence was insufficient to prove these seven alleged deficiencies existed or persisted, it must be concluded that the Board has failed to carry its burden of establishing the alleged factual grounds for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Escalona of all charges brought against him in this proceeding; (b) providing that Escalona be immediately reinstated to the position from which he was suspended; and (c) awarding Escalona back salary, plus benefits, to the extent these accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2004.
Findings Of Fact The Petitioner, Ms. Ann E. MacPherson, is on continuing contract with the Monroe County School District, and has been a teacher for that District for 19 years. She started first as a physical education teacher in elementary school for one year, and next taught physical education for six or seven years in middle school. Subsequently she started having health problems, and on doctor's advice, switched to teaching something other than physical education. She switched to science. She had had no formal education to teach science, except for courses in her physical education degree. However, she is now certified in Science and Physical Education. For the past two years, the Petitioner has taught General Science and Health at Key West High School. In October 1981, Ms. MacPherson injured her foot on sharp glass. She was then a diabetic, and the injury failed to heal properly. Over the next several years, she had surgery nine times in one foot and seven times in the other foot. Her injuries caused her to require lengthy hospitalization and recuperation periods away from the class room. In the school year 1981-82, she was absent 60.5 days, in the year 1982-83, she was absent 74 days and in the year 1983-84 the Petitioner was absent 48 days. The school year is 180 days. During some of her periods of recovery, Ms. MacPherson was able to work in the classroom, but was not able to walk around the classroom due to her foot injuries. On the days that the Petitioner was absent from her classroom, she continued to supervise the work of the teacher substitute from her home. She continued to prepare the lesson plans, correct notebooks, make up the tests, grade tests, and help the substitute teacher through continuing contact. She asked for a substitute teacher by name to help with continuity of instruction. Ms. MacPherson taught Intermediate Science Curriculum Study (ISCS) initially in the middle school for six or seven years, and then at Key West High School since at least 1980, except for one year when she taught Health. The ISCS program placed special emphasis upon individualized learning. Students were expected to select science areas for investigation or experiment from a list prepared by the teacher, and then to progress at their own rate to conduct the investigation or experiment. Continuity of instruction by the same teacher was especially important for the ISCS course. Other teachers who taught the ISCS program were required to take a summer training course, but the Petitioner was not. The Petitioner received some informal training from Ms. Betty Cox, the school district curriculum coordinator. During the time that the Petitioner taught science at the middle school (Horace O'Bryant), she organized and used field trips as an instructional technique. She was unique among other teachers in this respect in the emphasis that she placed upon field trips, and the fact that she used her own car for transportation and paid expenses from her own pocket. Also while she was at Horace O'Bryant Middle School, the Petitioner applied for and obtained several small grants from the Department of Education for teaching environmental education. An administrator of these grants testified that only about one-half of those who apply are successful, and that the Petitioner's projects were very good. By the 1979-1980 school year, the Petitioner had transferred to Key West High School. Almost all of her students, if not all, were not headed for college. Typically these students were probably going to take jobs fishing, as clerks, or waitresses, after leaving high school, and were of average or less than average academic ability. Homer B. Herrick, Jr., was Chairman of the Department of Science at Key West High School for the school years 1979-80 to 1983-84, and in that capacity, was supervisor of the Petitioner. During the first two years, Mr. Herrick observed no significant problems with Petitioner's teaching. Mr. Herrick observed Petitioner in the classroom during these two years. He had routine lesson plan problems with the Petitioner, of a type that all teachers had, and found that the Petitioner was willing to implement his suggestions, and did so. In the school year 1979-80, the Petitioner received a performance evaluation, Petitioner's Exhibit 6. The evaluation was very good. Ms. MacPherson was praised for her extraordinary efforts to enhance her science program by use of field trips and slide/sound track presentations. The annual evaluation stated that she was a "dedicated instructor, who goes all out for her students." She was commended for "many extra hours" she spent to enhance her program, and the evaluation concluded that she "works well with other members of her department." Ms. MacPherson was criticized in two areas: coordination of field trips, and greater use of the guidance staff to control classroom discipline. These, however, were minor observations, as the evaluation concluded that "overall discipline is very good." The evaluation was signed by the Principal of Key West High School, Clarence Phillips, and was prepared by the Assistant Principal, Thomas Roberts. Mr. Roberts could not remember if his evaluation was based upon his own observations, or the combined observations of himself, Department of Science Chairman Herrick, and a Mr. Gallagher. During the school year 1980-81 Principal Phillips assigned Assistant Principal Roberts, Department of Science Chairman Herrick, and District Curriculum Coordinator Betty Towns Cox to conduct a series of classroom observations of the Petitioner to evaluate her teacher skills. The date is established by Petitioner's Exhibit 3, a letter from Alvin Burney, President, United Teachers of Monroe, to the Petitioner dated February 24, 1981. The date of February 1981 as the date of the first intensive observations was corroborated, apparently, by Ms. Cox's log of visits, which indicated she spent 14 hours in that month in the classroom observing the Petitioner with Mr. Roberts and Mr. Herrick. Transcript, p. 75. (The log is not in evidence.) Ms. Cox, however, placed primary emphasis in her testimony upon observations she made in the 1982-83 and 1983-84 school years. The Petitioner placed the observation period in the 1981-82 school year, Mr. Roberts could not remember if it was in the 1980-81 or 1981-82 school year, and Mr. Herrick placed the date of the observations in the 1981-82 school year. The written evidence of the date is better evidence than the conflicting memories of the witnesses. Department Chairman Herrick was one of those requested to conduct these observations. The observations were almost daily, and went on for about two weeks. To Mr. Herrick, discipline in the classroom was the primary problem. The observers were looking for a teaching deficiency as a potential cause of the discipline problem, but Mr. Herrick did not recall any problem with Ms. MacPherson's delivery of instruction. Mr. Herrick testified that after these observations, extensive plans were formulated for improvement, and these plans were discussed with the Petitioner. In the following months, there seemed to be less problem with discipline, and it was his opinion that the Petitioner had incorporated and implemented their suggestions. Assistant Principal Thomas Roberts also observed Ms. MacPherson during this period of intensive observations in the 1980-81 school year. Tee agreed with Mr. Herrick that the primary problem causing the observations was discipline in Petitioner's classroom. Mr. Roberts observed the Petitioner 5 to 8 times over a period of about a month. Each of the observations were for a continuous 2 to 3 hour time each day. He became "extremely concerned" about the lack of discipline maintained by the Petitioner in some of her classes. In the area of teaching, Assistant Principal Roberts was "pleased that she was making a strong effort in terms of not only the field trips and the slide series, but, you know, she was interested in any information that was given her by Mr. Herrick or Mrs. Cox in terms of her planning process, the things teachers need to do. And more importantly, her interaction with children, you know, she was concerned about that." Transcript, p. 135. Assistant Principal Roberts, however, felt that he was not competent to give an opinion as to Petitioner's competence in instruction, that Mr. Herrick and Ms. Cox were assigned at that time to evaluate that area, and that he himself focused primarily on the discipline issue. He concluded that the Petitioner at that time (1980-81) needed more training in classroom discipline skills. One of the causes of disciplinary problems that year was one student who caused many problems in one of the Petitioner's classes. The Petitioner had had the older brother of this student, and both were significant disciplinary problems. Mr. Roberts agreed that the Petitioner had more serious problems in one class in particular. Transcript, pp. 133-34. The Petitioner testified that the administration failed to help her discipline this one student. Transcript, pp. 164-65. However, it is clear from the testimony of Mr. Herrick and Mr. Roberts above that the Petitioner in general had problems disciplining her classes, and the problem was not confined to one student. In late 1980 and early 1981, Alvin Burney was President of the United Teachers of Monroe, and in that capacity he was contacted by Ms. MacPherson with regard to the evaluation process that had been instituted by Principal Phillips. Mr. Burney met with Principal Phillips, and Petitioner's Exhibit 3, a letter from Mr. Burney to Ms. MacPherson, summarizes what Mr. Burney says he heard from Mr. Phillips at that meeting. In the letter to Ms. MacPherson, Mr. Burney listed items which he said he would submit to Principal Phillips as suggestions for resolving these problems. The suggestions in the letter were apparently not implemented by Principal Phillips, except that the suggestion that fewer observations be conducted was implemented. At about the same time, Mr. Burney talked with the Superintendent, and the Superintendent told him that he had a list of teachers that were not, in his opinion, performing to his standards, and that he wanted to look at ways these teachers could be improved or be terminated. The Petitioner was one of these teachers. The Respondent objected to this testimony as hearsay, and lack of foundation: time, who said it, and so forth. The record contains an adequate foundation. Transcript, p. 114. The testimony is the testimony of an agent of the Respondent, and admissible as an exception to the hearsay rule. Section 90.803(18)(d), Fla. Stat. (1984). When the Petitioner testified, she misplaced the period of intensive observations as having occurred in the 1981-82 school year. As discussed above, other more credible evidence establishes the period as February 1981 in the 1980-81 school year. The Petitioner did not mention the problem of discipline in the classroom as a cause for the observations, but emphasized instead what she characterized as a misunderstanding at the beginning of the year as to what was expected of her in teaching the ISCS program that year. She said that at the beginning of the year, there was not enough money to buy equipment for physics, chemistry, and her ISCS course, and that with the knowledge and approval of Mr. Herrick and Ms. Cox, the Petitioner planned to present only one ISCS unit at the beginning of the year, to present more general science instruction, and then to present two ISCS units at the end of the year. But midway through the year, Mr. Phillips called her in and criticized her for not teaching the ISCS units, and started the observations by Herrick, Roberts, and Cox. The Petitioner said that apparently Mr. Phillips had not been told of the plans approved earlier by Cox and Herrick. Ms. MacPherson's position at the hearing was the same as that which she expressed in June 1981 as a response to her 1980-81 evaluation, and is credible. See paragraph A.1., attachment to Petitioner's Exhibit 5. At the end of the school year 1980-81 (May 20, 1981) Petitioner received her annual teacher evaluation, Petitioner's Exhibit 5. The evaluation was signed by Principal Phillips. The evaluation rated the Petitioner acceptable in only 3 categories. In the following categories the Petitioner was rated needs improvement:" preparation and planning, techniques of instruction, teacher-student and parents, and personal qualities. The Petitioner was evaluated as "unacceptable" in classroom management. However, Principal Phillips did not personally observe the Petitioner in the classroom that year, transcript, p. 217, and there is no other testimony in the record to support the conclusions of this annual evaluation, except classroom management, which was improved. Indeed, the testimony of Mr. Herrick and Mr. Roberts lead the Hearing Officer to conclude that Ms. MacPherson responded to the assistance and evaluations that occurred on an intensive basis, and made suitable and adequate improvements. Based upon all of the foregoing, it is the finding of the Hearing Officer that the Petitioner ultimately performed her job adequately for the 1980-81 school year, but that she had had significant disciplinary problems during the school year, which she was able to improve by the end of the year. At the beginning of the next school year (1981-82) following the year in which intensive observations had been conducted, the Petitioner made a special effort to request the assistance of Department Chairman Herrick to develop her lesson plans. The Petitioner wanted to avoid the problems she had had the previous year. In October of 1981, as discussed above, Ms. MacPherson injured her foot, and her serious medical problems began. She was absent 60.5 days during the 1981-82 school year. During the times she was able to attend class that year, her infected feet were open and draining, and standing aggravated her condition. At some time during that school year, Principal Phillips suggested that Ms. MacPherson take a medical retirement. Ms. MacPherson again contacted Mr. Burney, and Mr. Burney, on her behalf, wrote a letter dated February 22, 1982, to Mr. Phillips. It was Mr. Burney's position at that time that in his conversations with Mr. Phillips the year before, Mr. Phillips had agreed to "make arrangements during pre-planning of this school term to outline detailed expectations" for the Petitioner, and this was not done. The letter further stated, on behalf of the Petitioner, that it was the Petitioner's contention that since no more observations had been scheduled, the deficiencies complained of in the previous year had been corrected. At the end of the 1981-82 school year, the Petitioner again received her annual evaluation signed by Mr. Phillips. Mr. Phillips did not personally observe the Petitioner, and the record does not contain any other competent evidence, either pro or con, concerning Ms. MacPherson's performance that year. Neither Mr. Herrick or Mr. Phillips testified specifically about her performance that year, and Ms. Cox's testimony cannot be adequately dated as pertaining to that year. The 1981-82 annual evaluation rated the Petitioner "acceptable" in the following area in which she had been rated "needs improvement" the year before: preparation and planning, professional responsibility, and relationship with staff and parents. Her grating in classroom management, which had been unacceptable in 1980-81, was rated acceptable. Ms. MacPherson was rated "needs improvement" in techniques of instruction and teacher-student relationship, which was the same rating in these categories as the prior year, and was rated unacceptable in personal qualities. Mr. Phillips commented in the evaluation that "although she says she wants to teach, I feel that her physical health is of an extremely serious nature and the suggestion of medical retirement should be reinvestigated." Respondent's Exhibit 1. The Petitioner attached a general rebuttal to the evaluation, simply disagreeing with critical ratings therein. It is the finding of the Hearing Officer from the foregoing that the Petitioner performed her duties adequately during the 1981-82 school year, except that her injuries caused her to miss a substantial number of classroom days, and her performance was impaired by her injuries. During the 1982-83 school year, as discussed above, Ms. MacPherson continued to have serious health problems with her feet. She was absent from school 74 days. In November 1982, she wrote to her Principal to try to schedule surgery and arrange for a permanent substitute so that the substitute, who she suggested by name in her letter, would provide some continuity of instruction for the students in the ISCS program. In preparation for this lengthy absence, Ms. MacPherson set up all the teaching units and day by day lesson plans for her substitute to follow, and prepared instructions for finding the equipment, how to use it, and how to monitor student use. She went over these plans with the substitutes assigned to her. But her hospitalization continued for longer than planned, and during this period she continued to make lesson plans at the hospital, to correct all the tests, correct notebooks, average grades, have frequent discussions of teaching with the substitute, and do the work she could do in the hospital or at hone. All of this work she did without pay because she was then on leave with pay, having exhausted her sick leave. During both the 1982-83 and 1983-84 school years, Ms. Cox, the school district curriculum coordinator, at the request of Principal Phillips, worked with the Petitioner on her lesson plans on a number of occasions. Ms. Cox also observed the Petitioner's performance in the classroom. Ms. Cox estimated that her observation periods lasted from as short as ten minutes to as long as a full hour, and that during the 1982-83 school year, she visited Petitioner's classroom about six times per month. Petitioner's counsel attempted to impeach Ms. Cox's testimony by cross-examination from logs prepared by Ms. Cox which recorded classroom visits she had made. The resulting record does not impeach the evidence provided by Ms. Cox. Much of the transcript simply consists of counsel's characterization of the logs, not testimony of a witness, and the logs were not offered into evidence. Further, it appears that the logs covered the period from 1980 to June 25, 1982, which is a period largely irrelevant to Ms. Cox's period of observations. Transcript, pp. 77, 76-77. Ms. MacPherson testified that the only times she remembered being observed by Ms. Cox was in 1976 and "when Mr. Phillips asked her to on that extensive evaluation." Transcript, p. 161. Ms. MacPherson placed the period of intensive observations, at the request of Principal Phillips, as the school year 1981-82. Transcript, pp. 173-75. At other times, the Petitioner testified that Ms. Cox did not stay in the classroom to observe her, but only beckoned her to come to the door, or visited in some other way so as to not disrupt the class. With respect to lesson plans, Ms. Cox's testimony did not disparage the Petitioner. Ms. Cox testified that she worked on lesson plans with the Petitioner, and that the end result contained some of her suggestions and some of the Petitioner's. Transcript, p. 42. The Hearing Officer concludes from this testimony that the Petitioner functioned adequately in collaboration with Ms. Cox on lesson plans, and had a good attitude in the process. Ms. Cox criticized the Petitioner in the classroom for failing to be "up and moving around, acting as a facilitator . . ." and testified that as a result, she observed a number of students not doing science. Transcript, p. 43. From this Ms. Cox stated her opinion that since the State now requires 72 hours of laboratory cork in science class, that "it would be very, very difficulty for a teacher as inactive as Ms. MacPherson to do seventy-two hours of lab work." Transcript, p. 45-46. In the same vein, she testified that the Petitioner would need a "tremendous" amount of training to be effective in the new science program. Transcript, p. 57. On cross-examination, Ms. Cox was asked specifically to state the factual predicated for her opinion. In addition to the question of moving about the room, Ms. Cox mentioned "facilitating" and "delivery of instructions." Transcript, p. 59. Ms. Cox defined "facilitating" to mean moving around the classroom, observing and instructing, so that concept was simply a short-hand way of combining the concept of motion, observation band delivery. Transcript, p. 59. Ms. Cox's criticism concerning delivery of instruction was that she said that the Petitioner delivered instructions only once, and that repetition was needed. Transcript, pp. 59-60. But when asked whether she had had enough day to day observation of the Petitioner to say "for a fact that her delivery was one shot," Ms. Cox admitted "no, I did not observe that frequently, but we talked about it." Transcript, p. 60. When asked to say whether she talked about it frequently, Ms. Cox testified: "I don't know if I said several occasions, or that we talked about it." Id. Thus, Ms. Cox did not have a sufficient basis upon which to concluded that Ms. MacPherson had any problems with delivery of instructions. With regard to the problem observed of students not on task, and Ms. MacPherson's failure to move around the room, Ms. Cox's opinion was not reliable for two reasons. First, she denied that average and less than average students would be expected to be less on task in an individually motivated science program than above average students. Transcript, p. 66. This is contrary to common sense and indicates that Ms. Cox did not have an adequate appreciation of the problems of teaching a science curriculum that depended substantially upon self-discipline and self-motivation. Further, Ms. Cox was aware that Petitioner's physical mobility in the classroom was significantly impaired due to her foot injuries, transcript, pp. 51-52, but she failed to evaluate how much of the "immobility" and "inactivity" of Ms. MacPherson was due to her feet, and how much may have been due to lack of teaching skills or motivation. Ms. Cox's opinion that Petitioner would have difficulty teaching the new science course because it requires 72 hours of laboratory work also appears not reliable. The ISCS program is no longer in existence at Key West High School, and the Petitioner would be required to teach a more traditional science course having 72 hours of laboratory work. Ms. Cox made no distinction between the ISCS individual laboratory curriculum and the new 72 hour requirement, but that is facially not reasonable. Since the new science program is no longer individualized study, then the 72 hours of laboratory work would also not be individualized. Thus, it would be much easier to teach this laboratory work because all students would probably be involved in the same laboratory experiment during the class period, and would not be able to choose individual experiments. Finally, Ms. Cox significantly limited the usefulness of her opinions by stating that she saw her role as one of assisting the Petitioner only, and not a responsibility for rigorous professional evaluation. She explicitly admitted: "I did not evaluate Ms. MacPherson. . . ." Transcript, pp. 47-48 (E.S.). For these reasons, Ms. Cox's opinions that the Petitioner was an "inactive" teacher, that she had problems with delivery of instruction, that she did not move among the students enough, and that she could not successfully teach the new science curriculum, are rejected as not being based upon sufficiently reliable evidence. On of the reasons given to Ms. Cox for taking steps to help the Petitioner was that parents had complained about the instruction of science by the Petitioner. However, since the complaints mentioned in the record were not complaints made personally to Ms. Cox, such purported complaints are hearsay within hearsay. Transcript, p. 50. As such, no finding can be made that such complaints in fact were actually made. The finding contained in the first sentence of this paragraph, however, can be made. Ms. Cox testified that by being absent sixty days or more in a one hundred eighty day school year, the Petitioner could not have provided her students with a minimum educational experience. Transcript, p. 45. Ms. Cox's opinion explicitly assumed that "the students had to miss a lot of instruction, because a substitute teacher could not just walk in and teach that program." Id. (E.S.). But Ms. Cox's opinion was not based upon an actual evaluation performed by Ms. Cox, but rather was based upon her generalized opinion drawn solely from the absences of Ms. MacPherson. Transcript, p. 56. Ms. Cox admitted that she did not test Ms. MacPherson's students to discover the actual educational level achieved, and that she had no objective criteria for her opinion. Id. Further, there is no evidence that Ms. Cox observed the degree to which Ms. MacPherson had supervised her substitutes, and the quality of instruction provided by the substitutes. For these reasons, Ms. Cox's opinion that Ms. MacPherson failed in fact to provide a minimal educational experience for her students is not sufficiently reliable as a basis for that finding. The fact that Ms. MacPherson candidly admitted that her students would have been better served had she not been absent so much, transcript, pp. 21, 25, does not support the conclusion that she failed to provide a minimal educational experience. At the end of the 1982-83 School year, the Petitioner received her annual evaluation, Respondent's Exhibit 2. She was evaluated as needing improvement in 2 of 8 relevant categories concerning classroom management, was evaluated as needing improvement in 2 of 5 relevant categories in delivery of instruction, needing improvement in the 1 relevant category of assessment techniques, and needing improvement in 6 of 11 relevant categories of professional characteristics. Principal Phillips emphasized the number of absences that Petitioner had had during the school year and her future health in the comments section. The evaluation was signed by Mr. Phillips, but he did not observe the Petitioner in the classroom during that year. At the end of the evaluation, Ms. MacPherson asked to be allowed the opportunity to submit a rebuttal if the criticisms in the evaluation were directed at her teaching skills unassociated with her illness and injuries. That question was not answered by the Respondent, and the Petitioner did not submit further rebuttal. In the pre-planning stages before the beginning of the 1983-84 school year, Ms. MacPherson contacted her Departmental Chairman, Mr. Herrick, and told him that she felt she was on unfirm ground, and that she wanted to be sure that she fulfilled what was expected of her. At that point, Mr. Herrick was no longer making observations of Ms. MacPherson, but he did look over her lesson plans a few times at that time, and he concluded that her lesson plans were satisfactory. Mr. Herrick sought to explain why he was no longer observing and evaluating the performance of the Petitioner at this time by stating that he had "conflicting duties" as a department chairman, wherein he was supposed to help teachers, and he felt it would have been difficult for him to make judgements in a "dismissal type situation." Transcript, p. 145(a). There was no other explanation for Mr. Herrick's departure from his expected normal role as direct supervisor of Ms. MacPherson. It must be concluded from Mr. Herrick's apparent exit from evaluative responsibilities and his excuse that he was too close to the Petitioner to participate in a "dismissal type situation" that by the fall of 1983, a decision had been made to actively pursue evaluation aimed at dismissal of the Petitioner. Nicholas A. Fischer, Director of Human Resources for the Respondent, is responsible in part for professional development and training of teachers, and other duties as assigned by the Superintendent. Dr. Fischer holds a Doctorate in Administration, Planning, and Social Policy from Harvard University. In September 1983, Dr. Fischer was requested by Principal Phillips to observe and evaluate the teaching skills of the Petitioner. Prior to conducting these evaluations, Dr. Fischer had no prior training or knowledge of the curriculum of the ISCS program, and to provide himself with some basis for conducting the evaluations, Dr. Fischer telephoned Dr. William Snyder by telephone. Dr. Snyder is a professor of science education at Florida State University and was one of those involved with writing the ISCS program. From this telephone conversation, Dr. Fischer developed the teaching standard for evaluating the Petitioner. Dr. Fischer conducted his first evaluations on October 13 and 14, 1983. The time spent in observation of the Petitioner was three class periods. Transcript, p. 95. Dr. Fischer was accompanied on at least one of these observation periods by Principal Phillips. At the end of the observations, Dr. Fischer and Principal Phillips prepared the observation form, Respondent's Exhibit 6. Dr. Fischer testified that he observed the Petitioner observing student activity and behavior from the front of the room and by walking around. He criticized her for not discussing with students the tasks on which they were working. At the beginning of the period, the Petitioner told the students to continue on the individual work they had been doing the prior day. Once they completed those tasks, the students were told to begin new work to be chosen by them from a list on the board. After class began, Dr. Fischer noted that the Petitioner failed to discuss the progress of work with individual students, and did not ask students to explain what they were doing, what they intended to do next, and whether they were having problems. Instead, the Petitioner stood in front of the room, or walked around, looking at student work and monitoring behavior, but not orally instructing. Dr. Fischer further testified that the Petitioner did not actively check the students at the beginning for comprehension of her instructions, and did not explain to the students what was expected in their work. Expectations that Petitioner should have communicated to the students included the amount of time to spend on the task, the process to be used to obtain help, and how the students were supposed to work on particular tasks. Dr. Fischer concluded from his observations that the Petitioner did not adequately instruct students at the beginning of the class, and did not adequately instruct student activities during the class. The observation form, Respondent's Exhibit 6, contains additional areas thought by Dr. Fischer to be deficient in Petitioner's teaching. The form mentions a failure to make objectives in lesson plans more specific, activities matched to objectives, and methods of evaluation both made more specific and correlated with objectives and activities. He concluded that it was difficult to determine if lesson plans were followed due to vagueness. In one period, Dr. Fischer observed 50 percent of the students on task 60 percent or less of the time. With regard to behavior of students and professional attitude interacting with students, Dr. Fischer found that the Petitioner needed to be firmer, consistent, and interact in a way that defined what was expected, minimally involving other students. He found that the interactions with students were more confrontations than conversation, and statements were made to the entire class when only the behavior of a few was to be corrected. At the end of the two days in which observations were conducted, Dr. Fischer net with the Petitioner and discussed the contents of his evaluations contained in Petitioner's Exhibit 6. Next, Dr. Fischer developed a professional development plan, which is Respondent's Exhibit 7. The plan follows the topical categories contained in the observation form. The plan sets forth a number of goals to be accomplished by the Petitioner to remedy the matters criticized by Dr. Fischer in the observation form. Dr. Fischer discussed the plan with the Petitioner and scheduled another observation for December 1983. The professional development plan called for daily evaluation of each student's progress. The Petitioner found that daily evaluation was too time consuming and not effective, since students did not make enough progress each day to make evaluation meaningful, and also because there was not enough time each day to both instruct and evaluate each student. Transcript, 185-86. This was corroborated by Respondent's Exhibit 6, which indicates that a class period was about 60 minutes, and Petitioner had 13 students in the third period. While 13 students in a single class is a very small number compared to typical classrooms, it still allows perhaps 10 minutes at the beginning for general instruction and getting out equipment, 10 minutes at the end for equipment storage and summation, and only 180 seconds per student for the remaining 40 minutes in which to monitor behavior, instruct, observe, and evaluate. The Petitioner discussed with Ms. Cox the requirement of daily evaluation, and Ms. Cox told the Petitioner that she agreed that daily evaluation was not possible, but that the Petitioner should try to satisfy "them" (Dr. Fischer and Mr. Phillips) and do it that way for two or three weeks, and then when the period of Scrutiny was over, to go back to doing it the way she had done before. Transcript, pp. 185-86. (As testimony relating that Ms. Cox is fact said these things, the foregoing is not hearsay. To the extent that Ms. Cox's opinion is in the record to corroborate the Petitioner's own opinion that daily evaluation was impossible, it is hearsay, as such, may be relied upon as corroborative of direct evidence on the point). The professional development plan also called for the Petitioner to observe other teachers teaching laboratory science courses in "classes identified by the Principal." Respondent's Exhibit 7, p. 3. Apparently the Petitioner was given the name of one teacher in her own school who taught laboratory science (but not ISCS, since that program had been discontinued), but was not given the names of other teachers in other schools to observe as promised. Further, she was never told when she could be released from her classes to observe these teachers. Transcript, pp. 178-79. Thus, it was impossible for her, on her own, to leave her classes to follow up on these observations. (Dr. Fischer's testimony, which only asserts that "resources" of an identified nature were "suggested" does not contradict Petitioner's testimony. See transcript, p. 100). Other than the matters discussed in the last two paragraphs, the Petitioner was responsible, on her own initiative, to implement all other aspects of the professional development plan. The Petitioner did not ask Dr. Fischer for any help with implementation of the professional development plan, transcript, p. 106, but she did ask for help from Ms. Cox, transcript, p. 187. Dr. Fischer recognized that after a teacher had been evaluated and instructed on areas needing improvement, that the teacher should be afforded a period of time to implement the suggestions. Transcript, pp. 98-99. He estimated that a minimum of a month would be needed to afford a teacher a reasonable period of time to become more specific in plans for instruction, and would need two or three months for some aspects of classroom management. Transcript, p. 99. Other corrections, such as announcing a rule in class, he thought should require only a week to correct, and others, such as stopping fights immediately, should be implemented the next day. Transcript, pp. 98-99. To improve rapport with students, a teacher needed at least two months for implementation. Transcript, p. 99. Applying Dr. Fischer's expectations to the professional development plans, Respondent's Exhibit 7, the development plan consists almost entirely of goals for improvement that would require one to three months to correct. The professional development plan lists goals and objectives stated in broad terms falling within the categories discussed in paragraph 45 above: development of more specific lesson plans, general principles for improving classroom management, and for improving rapport with student. A few of the objectives of the development plan (delivery of instruction, paragraphs 4 and 5, classroom management, paragraphs 1 and 5) would probably be such that it would be reasonable to expect correction and implementation in a few days. But overall the development plan states that implementation of the various sections were to have been accomplished by either December 1, 1983 (five weeks) or January 1, 1984 (nine weeks). At some point between October 26, 1983, when the professional development plan was discussed with and signed by the Petitioner, and December 1983, the Petitioner again became ill due to her feet. The scheduled second observation thus did not occur in December, but occurred on "change-over" day in January, 1984. Change-over day is apparently the day when the second semester begins, and is a day when the skills of a teacher in explaining new material and setting new directions for a class are more extensively tested and required. While it is not a normal teaching day, it is a suitable day to observe a teacher's skills under stress. At the end of the observations that day, Dr. Fischer concluded that the Petitioner had not made significant improvement since his evaluations in October. He felt that some improvement had been made in lesson plans, but still was not satisfied that the plans were sufficiently specific. He gave no examples, however. He said he was still "not clear" on the relationship between the techniques used for evaluating student performance and the objectives for student performance on a given day. And he expressed continued concern for clarity of directions in the classroom and the amount of time students were expected to be on task. Transcript, p. 87. Dr. Fischer's evaluation in January 1984 was based solely upon the observations in the classroom made on that day, and was not based upon observations of or knowledge of the steps that the Petitioner took to improve during the interim. Transcript, p. 88. Dr. Fischer knew that the Petitioner was absent during the period from October 1983 to January 1984, but he did not know the exact number of days of such absence. Transcript, p. 100. Dr. Fischer testified that it would probably not make a difference in his January 1984 evaluation if Ms. MacPherson had been absent due to illness for the majority of the time from the date of the first observations and the beginning of the professional development plan. Transcript, p. 101. In both the October 1983 evaluations and the January 1984 evaluation Dr. Fischer concluded that the Petitioner was not an effective or a competent teacher. Dr. Fischer was of the opinion that he had had an adequate amount of time to observe the Petitioner to develop the above opinion, but that "normally" he would have hoped to have had more time. The students in the Petitioner's ISCS classes were average and below average in skills and intelligence. Ms. Cox did not think that this factor was relevant to her assessment of Petitioner's teaching skills. Dr. Fischer felt Use factor was relevant, and was of the opinion that such students could be taught effectively only by a "highly skilled teacher." Transcript, p. 105. Ms. Cox's failure to consider the skill level of the students in the ISCS science course, with its total emphasis upon learning through self- discipline and self-motivation, severely undermines her credibility as an evaluator of the Petitioner. Dr. Fischer's opinion that only a highly skilled teacher could teach average or below average students in the ISCS science program is accepted as credible. Continuity of teaching by the same teacher is important for proper instruction of students. Unless the teacher is present continuously with the same students, he or she has no adequate way to judge the progress of the student, and from that evaluation of progress, tailor future instruction. Continuity of instruct ion was especially important in the ISCS program because students were not lectured and given the same homework, followed by testing, but progressed at different rates based upon individual choice. With respect to the school years 1981-82, 1982-83, and 1983-84, based solely upon the absences of the Petitioner, it was Dr. Fischer's opinion that the Petitioner could not deliver a minimum educational experience to her students. Transcript, pp. 89-90. Like Ms. Cox, this opinion was not based upon actual testing of students who were taught by Ms. MacPherson in those years, but was based rather upon inferences drawn from the absences themselves, coupled with Dr. Fischer's own expertise. Mr. Herrick also addressed himself to the issue of the Petitioner's absences. He testified that due to the great length of the Petitioner's absences, he had to use several substitutes since there was a rule limiting the time that one substitute could be used. He testified that use of several substitutes resulted in substitutes not always familiar with the materials and student progress, and that he passed by the classroom frequently and could see that the class was "rather chaotic." Transcript, p. 148. Hut Mr. Herrick did not attribute this fact to a lack of skill by Ms. MacPherson: he stated that it would happen to any teacher who had been absent so long. Id. Due to the fact that Dr. Fischer and principal Phillips were faced with a deadline of February 1984 in which to decide whether to recommend to the school board that the Petitioner be returned to annual contract, he and others had to make a decision shortly after the January 1984 observations. Transcript, p. 104. On February 29, 1984, the Superintendent, A. J. Henriquez, wrote to the Petitioner stating that he would recommend to the school board that the Petitioner be returned to annual contract for the school year 1984-1985. Respondent's Exhibit 9. The purpose of returning the Petitioner to annual contract would be to provide her time to improve, and to terminate her if she did not improve. Transcript, p. 107. The Respondent would be legally free to terminate a teacher on annual contract without cause simply by failing to renew the annual contract at the end of one year. In the two previous years, Mr. Phillips wrote to the Petitioner warning that he might recommend that she be returned to annual contract. On April 30, 1982, Mr. Phillips wrote suggesting medical retirement and warning he would recommend return to annual contract if the Petitioner's attendance did not improve. Respondent's Exhibit 4. On March 14, 1983, Mr. Phillips stated that he planned to recommend that Ms. MacPherson be returned to annual contract. Respondent's Exhibit 8. This recommendation, however, was held in abeyance for another year. Respondent's Exhibit 5. In both 1982 and 1983, the basis for the proposed return to annual contract was solely Petitioner's attendance problems, and was not based in upon any claim that the Petitioner lacked teaching skills. In view of the foregoing history of contemplation of return of the Petitioner to annual contract, it is very likely that if the Petitioner is returned to annual contract, her contract will not be renewed at the end of the annual term. Mr. Phillips signed the Petitioner's annual evaluation for the school year 1983-84. The evaluation does not rate the Petitioner unacceptable in any area, but rates her as needing improvement in preparation and planning, classroom management, techniques of instruction, assessment techniques, professional responsibility, school contributions, and personal qualities. The Petitioner was rated acceptable in knowledge of subject matter, teacher-student relationships, and relationships with staff and parents. Evidently due to the fact that no one provided Petitioner with a copy of the evaluation or asked her to sign it, and because the Petitioner was not present at school after school ended that year, the Petitioner did not see the evaluation, and thus it was not then (apparently) discussed with her. Transcript, p. 34. During the 1984-85 school year, the Petitioner took leave of absence without pay to try to heal her feet completely. The last surgery was in October 1984, and since then her feet have been healing well, without flare-up. The Petitioner testified that her feet were now completely healed, and she would be able to walk around a classroom without endangering her feet or her health. She further testified that her doctor felt her feet were healed. Transcript, p. 189. (While this is hearsay, it is corroborative of the Petitioner's own testimony concerning the condition of her own feet, and may be relied upon for that purpose.) The Respondent did not introduce any rebuttal or contradictory evidence as to the current condition of Petitioner's health. The Petitioner will have a lower salary if the Respondent changes her contract from continuing to annual status. The parties have proposed a number of findings of fact, many of which have been considered and are a part of the findings above. The following proposed findings of the parties are considered separately: Finding number 20 proposed by the Petitioner is rejected in part. Mr. Burney's opinion as to the Petitioner's competence as a teacher is rejected for lack of a predicate to show that Mr. Burney had observed the Petitioner as a teacher and had the competence to form such an opinion. To the extent that his opinion was based upon conversations with Mr. Herrick and Mr. Roberts, findings have already been made as to their opinions, and Mr. Burney's reiteration of what they said is cumulative and adds nothing to the record. See also ruling at page 123, transcript. The Petitioner's failure to remember what the initials "ISCS" stood for, which is Respondent's proposed finding 6, is largely irrelevant. That failure might have been relevant had it been the only such event in the record. But since counsel for the school board, Ms. Cox, and Dr. Fischer appear to also disagree as to what the letters mean (compare Respondent's proposed finding 6; transcript, p. 42; and Respondent's Exhibit 7, p. 1), the only finding that could possibly be justified is that there is disagreement among the witnesses who were professionally involved with the administration, evaluation, and delivery of the ISCS curriculum. Finding number 20 proposed by Respondent concerning complaints by parents and students is rejected. No parents or students testified. Neither did Principal Phillips. This is hearsay upon hearsay. Respondent's proposed finding 39 proposes a finding that Ms. Cox rendered an opinion that Petitioner was not providing a minimal educational experience for students "based upon her observations and experience," citing the transcript, page 45. Ms. Cox did not respond based upon her "observations." The question asked was "in light of your experience and background and education." Thus, the opinion, as discussed above, was a generalized opinion based solely upon a stated general number of absences. Ms. Cox was not asked to render an opinion based upon her observations of Ms. MacPherson, and the proposed finding is rejected to that extent. With respect to Respondent's proposed finding 46, Petitioner did testify that most students who missed from sixty to seventy-four days out of a school year of 180 days would not receive a minimum educational experience. The Respondent did not show, however, whether the absence of Ms. MacPherson was the equivalent to total absence of the students themselves for those days, and thus the finding is only of marginal relevance. It has been the intent of the Hearing Officer to explicitly comment upon every proposed finding of fact unless such proposed findings are cumulative, subordinate, or unnecessary. If a finding is immaterial, it is the intent of the Hearing Officer to have explicitly identified such finding as immaterial.
Recommendation For these reasons, it is recommended that a final order be entered that good and sufficient reasons do not exist to return the Petitioner, Ann E. M, to annual contract. DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Thomas W. Young, III, Esquire General Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Michael Casey, III, Esquire 2 South Biscayne Boulevard Suite 1800 Miami, Florida 33131 A. J. Henriquez, Ph.D. Superintendent The School Board of Monroe County, 242 White Street P.O. Drawer 1430 Key West, Florida 33040-1430 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue The issues in this case revolve around the question whether Respondent's employment as a teacher in the Broward County Public School System should be terminated either for failure to correct identified performance deficiencies within the 90-day probation period prescribed by Section 231.29(3)(d), Florida Statutes, or for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Clemons is an elementary school teacher. She entered the profession in 1972 after graduating from Florida A&M University. In addition to her bachelor's degree, Clemons holds a Teacher's Certificate from the Florida Department of Education. From 1972 until 1988, Clemons taught both in Florida public schools and (for seven of those years) in Department of Defense schools overseas. After a hiatus from teaching, 2/ Clemons returned to the classroom in October 1990 as a substitute teacher in the Broward County Public School System. She performed well enough in that capacity to be offered a full- time teaching position at North Side Elementary School ("North Side"), beginning in January of 1994. The following school year, Clemons transferred to Lauderdale Manors, joining the instructional staff in August of 1994 as a second grade teacher. There, she soon attracted the attention of Doris Bennett ("Bennett"), the school's new principal. Bennett, a classroom teacher for approximately 13 years before spending six years as an assistant principal at several Broward County elementary schools, had assumed the position of Lauderdale Manors' principal on July 1, 1994. By the end of September 1994, she was growing concerned about Clemons' apparent inability to control and manage her classroom. By law, each public school teacher in the state must be assessed at least once a year to determine how his or her performance measures against criteria that are required to be communicated in advance to all personnel. 3/ To perform this assessment, performance evaluators in the Broward County Public School District use a tool called the Instructional Personnel Assessment System ("IPAS"). The IPAS requires that a teacher be rated in ten "performance areas": "instructional planning," "lesson management," "lesson presentation," "student performance evaluation," "communication," "classroom management," "behavior management," "records management," "subject matter knowledge," and "professional competencies." A teacher's categorical ratings of "S - Satisfactory," "N - Needs Improvement," or "U - Unsatisfactory" are based on the assessor's determination of the teacher's compliance with various "performance indicators" prescribed for each performance area. In addition to, and based upon, the several categorical ratings, the teacher is assigned a single "overall performance rating." Bennett testified that one categorical rating of "U" would result in an overall "unsatisfactory" performance rating. In April 1995, toward the end of the 1994-95 school year (Clemons' first at Lauderdale Manors), Bennett completed Clemons' annual evaluation. Using the IPAS, Bennett rated Clemons "unsatisfactory" in two performance areas, namely, classroom management and behavior management. These negative marks resulted in Clemons receiving an overall performance rating of "U." Bennett recommended that Clemons be dismissed. Clemons' employment might have been terminated in 1995 but for the fact that on March 10, 1995, Bennett had signed a Final Assessment form attesting that, in her "professional opinion," Clemons had "successfully completed the Professional Orientation Program" for first-year teachers. Because Bennett's recommendation of dismissal followed so closely after a favorable assessment of Clemons' performance, it was not approved. Bennett assigned Clemons to a fifth grade class for the 1995-96 school year, reasoning that she might succeed with older children. Although Bennett and former Assistant Principal Roach both testified at hearing that Clemons' problems persisted, 4/ a contemporaneous record suggests that the teacher performed better in her second year at Lauderdale Manors than she had during her first. On May 31, 1996, Bennett signed an IPAS instrument showing that Clemons had received a "satisfactory" rating in all categories, earning an overall performance rating of "satisfactory." Bennett qualified this positive evaluation, however, with a recommendation that Clemons be offered another annual contract, rather than the more favorable professional service contract for which she was then eligible. The reason, Bennett wrote on the IPAS form, was that Clemons still needed "to work on improving classroom and behavior management skills." Bennett's recommendation was not approved. Instead, Clemons was promoted to professional service contract status for the 1996-97 school year. That year, Bennett put Clemons in charge of a fifth grade "drop-out prevention" class. The drop- out prevention class had about half as many students as a regular class (14-18 as opposed to 32-35) and afforded the teacher greater flexibility with the curriculum. For these reasons, Bennett believed that the drop-out prevention class might be more suitable for Clemons. William Roach, who was the Assistant Principal at the time, explained that “this was done as an effort or a plan, if you will, to really give Ms. Clemons an opportunity to maybe come out of the classroom for awhile, get a perspective, maybe, you know, have a chance to be successful.” (T. 187.) On the other hand, Bennett acknowledged that the children in this special class were "academically challenged," "less motivated," and hence more difficult to teach than other students. 5/ The IPAS form containing Clemons' assessment for the 1996-97 school year, which Bennett signed on May 30, 1997, and Clemons refused to sign, reflects a deterioration in Clemons' performance. She received a "needs improvement" rating in the categories of lesson management and student performance evaluation. Clemons was rated "unsatisfactory" in the areas of classroom management and behavior management. Her overall performance rating was a "U." Clemons filed a grievance with the Broward Teachers' Union to protest this negative evaluation. Interceding on Clemons' behalf, a union representative requested that Bennett produce documentation supporting her unfavorable assessment of Clemons' skills. Bennett could not do so. Consequently, at the union's suggestion, Bennett changed Clemons' overall performance rating to "satisfactory" for the 1996-97 school year. Clemons continued to teach in the fifth grade drop-out prevention class during the 1997-98 school year. And she continued to have problems. For example, after personally observing Clemons in her classroom on February 23, 1998, Bennett wrote: “Have noticed some, slight improvement this year, but still not enough to warrant upgrading overall evaluation to satisfactory.” Roach, the Assistant Principal at Lauderdale Lakes from 1993 through the end of the 1997-98 school year, was less generous: Q [by Mr. Pettis]. During that four academic school year period [1994 through 1998], give me an overall assessment as to how Ms. Clemons’ behavioral management that was reflected in her classroom progressed? A [by Roach]. I felt that it did not progress. In fact, if anything, it digressed or regressed. As I said, the frequency of going down to the room for problems became more. (T. 186.) And then a new layer that was added as the [sic] was the fact that parents were complaining about the classroom and asking to have their children taken out of the room. There seemed to be just a total lack of respect, students for teacher, but I also observed sometimes that Ms. Clemons’ respect for the students was also lacking and I felt that sometimes there was an unhealthy situation and there were occasions in support of her that we did move children out. Nevertheless, the IPAS form that Bennett signed on May 29, 1998, reported that Clemons was performing satisfactorily in all areas; her overall performance rating for the 1997-98 school year was “satisfactory.” Thus, contrary to Roach’s recollection, the contemporaneous IPAS evaluation shows that Clemons’ performance did improve in her fourth year at Lauderdale Manors. The following year, 1998-99, Clemons was assigned to a regular fifth grade class. She did not do well. Here is how Keith Miller, who started as Assistant Principal that year, described his initial observations of Clemons: Q [by Mr. Pettis]. With regard to your first year as AP at Lauderdale Manors, '98 to '99, during the course of that year, did it come to your attention any performance concerns or deficiencies with regard to Ms. Clemons' classroom? A [by Miller]. Yes. Q. And what were those areas of deficiency that you were aware of in '98/'99? A. [T]he reason . . . Ms. Clemons was brought to my attention . . . was parental complaints. As I stated in my deposition, I wanted to seek out and find out for myself if these parental complaints were warranted as a concern for our classroom management. Q. So, how would you seek that out? A. By going into the classroom and observing. * * * Q. What types of things were you looking for . . . in '98/'99 during your observations? A. Initially, as I've stated earlier, my concern was to see if the parental complaints were warranted as it pertains to classroom management and the concern with parents saying the children were coming home and saying one thing. And, you know, as a teacher and an educator and also as a parent we know that the children sometimes will extend the truth to get what they want. But I wanted to find out if that was the case. Well, after doing my observations in the classroom, also on a formal observation, which you all have, often times I would walk up to a classroom that was chaotic with the noise. There are different types of noise. There is an active learning noise, let's make no mistake there, and there is a noise where there is disruption. And often times, one particular observation I went in, there were students out of their seats, there were paper airplanes thrown, Ms. Clemons yelling. And one of the things was, "You need to sit down," without a consequence being rolled out or dished out or implemented at that time. And it was very evident early on that the parental complaints and the student responses were, in effect, true with regards to classroom management. (T. 194-97.) Bennett also observed Clemons at the beginning of the 1998-99 school year. The principal noticed problems with behavior management, and also deficiencies relating to the delivery of instruction, such as incomplete lesson plans, blank student writing journals, falling behind in teaching the prescribed math curriculum, and failure to put subject "openers" (e.g. math and reading assignments) on the chalk board in the morning so that students could begin working immediately upon arrival. After an IPAS evaluation for the period from August 25 to October 1, 1998, Clemons was rated "unsatisfactory" in the areas of instructional planning and behavior management. As a result, effective October 2, 1998, Bennett placed Clemons "on documentation," meaning that she would have 90 days in which to correct the identified performance deficiencies, pursuant to Section 231.29(3)(d)2.a., Florida Statutes. In Bennett's opinion, Clemons did not correct the identified deficiencies within the 90-day probation period. Therefore, she recommended that Clemons' contract be terminated. The superintendent, however, did not timely act on Bennett's recommendation. 6/ Consequently, Clemons could not be dismissed. Returning to Lauderdale Manors for the 1999-00 school year, Clemons was assigned to teach a regular third grade class. By design, she was placed in a classroom located close to the administrative office, for support and assistance. Assistant Principal Miller visited her class on September 17, 1999. As he remembered: When . . . I walked into the room, one of the first things I noticed she was doing was reading, but it took her 10 minutes just to get her started when I walked in. That's noted here [on a Classroom Observation/Feedback Form prepared by Miller and signed by him and Clemons on September 17, 1999]. The lesson was broken up with student interruptions and lack of preparation. * * * One of the other things prior to walking in the classroom, I would stand outside the classroom and I heard children screaming, yelling. And I used the word, I felt chaos when I walked in. And you have to understand, when I walk into the classrooms immediately the tone is going to go down because of my presence in the classroom. So when I walked in, it did calm down. There were five students after I sat down when I circulated the room sleeping while she was attempting to teach reading. And my question to her was, How are you keeping track of misbehavior? Because she was telling people to do things, but not monitor[ing] it properly. (T. 202-04.) Bennett continued to observe and evaluate Clemons as well. On September 27, 1999, Bennett met with Clemons to discuss several classroom observations, including one that had been made on that day. Bennett remained concerned about Clemons' deficiencies in the areas of instructional planning and behavior management. Bennett approved Clemons' request to observe two other third grade teachers, to learn from them. Bennett also decided to place a paraprofessional (teacher's aide) in Clemons' classroom for assistance. Bennett observed Clemons' class on October 20, 1999, and saw no improvement. Previously identified deficiencies in the areas of student discipline and presentation of subject matter persisted. Indeed, by this time, Clemons' class had dwindled to 11 students — and even these few were misbehaving. On October 22, 1999, Bennett placed Clemons on 90-day performance probation, effective immediately and ending February 11, 2000. Bennett notified Clemons of her decision, as well as the statutory procedures applicable to a performance probation, by memorandum dated October 22, 2000. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. As explained in a separate memorandum dated October 22, 2000, Bennett placed Clemons on probation due to her ongoing and documented concern about Clemons' performance in the areas of behavior management and instructional planning. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. Additionally, by yet another memorandum dated October 22, 2000, Bennett scheduled a conference with Clemons for October 27, 2000, to discuss the preparation of a Performance Development Plan. Clemons acknowledged her receipt of this memorandum by signing it on October 22, 2000. When a Broward County public school teacher's performance is determined to be unsatisfactory, a Performance Development Plan ("PDP") is prepared for, and with input from, the affected teacher. The purpose of the PDP is to assist the teacher in correcting identified performance deficiencies within the 90-day probation period. On October 27, 2000, two PDPs were executed by Bennett and Clemons. One addressed Clemons' identified deficiencies in the area of behavior management. The other dealt with her deficiencies relating to instructional planning. The PDP concerning behavior management included a the following description of Clemons' perceived shortcomings: The teacher fails to: maintain consistency in the application of policy and practice by: establishing routines and procedures for the use of materials and the physical movement of students. formulating appropriate standards for student behavior identifying inappropriate behavior and employing appropriate techniques for correction. Under the heading, "Strategies for Improvement, Correction, and Assistance," this PDP enumerated the following interventions: To date (10/27/99), by parental requests, a total of five (5) students have been removed from teacher's classroom to assist in alleviating severe disciplinary concerns. Teacher will be provided with an aide to assist with classroom behavior management. (This strategy will be in place during the week of November 1, 1999.) Alliance Coach will observe teacher and provide suggestions and feedback on effective classroom behavior management techniques. Curriculum Facilitator will observe teacher and provide specific suggestions and feedback on routines and procedures teacher can implement on effective transitioning techniques. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for behavior management strategies. Grade 3 Team Leader will assist teacher in developing and implementing a classroom discipline plan. Team Leader will demonstrate, model, plan, and provide feedback. Outside Consultant will observe teacher and provide specific support and assistance in effective behavior management strategies. Teacher will attend a behavior management workshop, review observations with administrator, and implement appropriate strategy(ies) in own classroom. The PDP document advised Clemons that if she failed to correct all areas identified as deficient by February 11, 2000, she would receive an "Unsatisfactory IPAS evaluation," and a "recommendation for termination of contract" would be made. The PDP for correcting Clemons' problems in the area of instructional planning described her identified deficiencies as follows: The teacher fails to: select, adapt or develop, and sequence instructional materials and activities for the designated set of instructional objectives and student needs. create interest through the use of materials and techniques appropriate to the varying abilities and background of students. use individual student interests and abilities when planning and implementing instruction. The prescribed interventions for these deficiencies were: Alliance Coach will assist in providing appropriate materials, orienting techniques, demonstrating and modeling instructional strategies, transitioning techniques, and improving the overall learning environment of the classroom. Alliance Coach will meet weekly with teacher to provide specific support and assistance with feedback. Grade 3 Team Leader will review strategies and provide intensive support and assistance in areas of aligning objectives with lesson plans which focus on content, materials, lesson presentation, and student activities. Curriculum Facilitator will model and demonstrate a reading lesson, provide feedback, observe teacher presenting a lesson, and provide feedback of reading lesson to teacher. This process will be repeated on a weekly basis through November 18, 1999. Teacher will be afforded the opportunity to observe exemplary classroom teachers to identify and implement best practices for instructional planning and lesson management. Outside Consultant will observe teacher and provide specific support and assistance in effective instructional planning. Like the other PDP, this one notified Clemons that failure to correct all identified deficiencies by February 11, 2000, would result in a recommendation that her contract be terminated. As Miller testified, "this [the coordinated intervention strategy set forth in the PDPs] wasn't an afterthought where we just patchwork everything together. We worked together as a team in order to help [Clemons] meet with success." (T. 209.) Jounice Lewis is a Coach with the Alliance of Quality Schools (the "Alliance") in Broward County. The Alliance is a local program that provides assistance, in the person of coaches such as Lewis, to teachers in low performing schools. 7/ Alliance coaches help teachers with curriculum instruction. They are not invited into a school except upon the vote of 80 percent of the faculty. Taking part in the implementation of the PDPs that Clemons had approved, Lewis observed, counseled, and assisted Clemons while she was on 90-day performance probation during the 1999-00 school year. Lewis remembered a teacher who was having difficulties: "Often [Clemons'] class was disruptive, and I think that this may have been because there was not a routine." (T. 162.) The reading center was "not inviting." (T. 165.) The physical environment was not "conducive to learning;" one time, Clemons' students "were all around the classroom rather than in one area." (T. 166.) "Ms. Clemons' classroom was not organized, it was in disarray." (T. 167.) In Lewis's opinion, the behavior of Clemons' students did not seem to improve during the 90-day probation period. Further, Lewis observed at hearing that although Clemons had been receptive to Lewis's suggestions, she nevertheless had failed to improve her performance in the area of classroom control or management. Lewis was sure that Clemons had the "content knowledge" but felt that Clemons was unable to teach what she knew because her classroom was not under control. Bennett continued to observe and evaluate Clemons during the probation period. Using the IPAS instrument, Bennett rated Clemons "unsatisfactory" in the categories of instructional planning 8/ and behavior management 9/ for the period from October 22, 1999 through November 10, 1999. On this same IPAS, Bennett also assigned Clemons a rating of "needs improvement" in the area of records management. 10/ Bennett and Clemons both signed this IPAS form on November 15, 1999. Between November 11, 1999 through December 1, 1999, Bennett again assessed Clemons using the IPAS, rating her "unsatisfactory" in the areas of instructional planning and behavior management. In this period, Clemmons improved her rating in the records management area to "satisfactory," but slipped to "needs improvement" in the category, lesson presentation. 11/ Bennett and Clemons signed this IPAS evaluation form on December 9, 1999. On December 10, 1999, Clemons met with Bennett for a mid-point evaluation. Also in attendance was Valerie Proffer, a union representative. Bennett called this meeting to inform Clemons of progress achieved, as well as to make recommendations for correcting deficiencies that persisted. The minutes of the mid-point review meeting report that the participants discussed the many types of assistance that already had been provided Clemons, which included the services not only of Coach Lewis, but also input from the school's Curriculum Facilitator (who had provided suggestions and feedback on effective transitioning techniques) and the Grade 3 Team Leader (who had helped Clemons develop and implement a classroom discipline plan). Bennett notified Clemons that classroom behavior management remained a major area of concern and that deficiencies relating to instructional planning still needed to be corrected. The principal made specific recommendations for curing these problems and prescribed additional interventions, including the retention of an outside consultant to videotape Clemons for a self-critique. By memorandum dated February 3, 2000, Bennett notified Clemons that she had scheduled a conference for February 11 (the last day of the 90-day probation period) to discuss the final IPAS evaluation of Clemons, which would cover the period from January 27, 2000 to February 11, 2000. Also on the agenda for discussion were Clemons' PDPs and her "continued employment at Lauderdale Manors Elementary School." Clemons acknowledged receipt of this memorandum by signing it on February 3, 2000. On an IPAS form dated February 11, 2000, Bennett recorded her final assessment of Clemons. She concluded that Clemons' performance was "unsatisfactory" in the areas of instructional planning and behavior management. The ratings of "U" in these two categories compelled an overall performance rating of "unsatisfactory." Clemons received a "satisfactory" rating, however, in the eight other performance areas identified on the IPAS: lesson management, lesson presentation, student performance evaluation, communication, classroom management, records management, subject matter knowledge, and professional competencies. Thus, while the final IPAS evaluation of Clemons showed, on the one hand, that she had not corrected all identified performance deficiencies, it did demonstrate, on the other, that the teacher had improved during the 90-day probation period in the areas of records management and lesson presentation, and also that she was performing satisfactorily in most of the rated performance areas. Clemons attended the meeting on February 11, 2000, that Bennett had scheduled. At the meeting, Bennett provided Clemons with her final IPAS evaluation. Clemons disagreed with the evaluation and refused to sign it. Bennett informed Clemons that because performance deficiencies remained, she would recommend termination of Clemons' contract. Dwight Hamilton, a BTU representative who attended the meeting, explained the termination process to Clemons. Bennett told Clemons that the next Monday, February 11, 2000, she was to report to the Media Center rather than her classroom, from which Clemons was now being removed. Clemons became angry with Bennett and Assistant Principal Miller (who was also present) and apparently made some intemperate remarks, but these were not the subject of formal charges. By memorandum dated February 11, 2000, Bennett notified the superintendent of her recommendation that Clemons be dismissed immediately, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within the 90-day probation period. The superintendent accepted Bennett's recommendation and so informed Clemons by letter dated February 16, 2000. The superintendent advised Clemons, "[p]ursuant to Florida Statute ," that he would recommend to the Board, at its meeting on March 7, 2000, that she first be suspended without pay and, thereafter, dismissed from employment. He expressly predicated the recommendation of suspension without pay on "unsatisfactory job performance." As apparent additional legal authority for his intended recommendations to the Board, the superintendent cited to, and quoted from, Section 230.33(7)(e), Florida Statutes. The superintendent closed his letter by notifying Clemons that the Board would act on his recommendation to dismiss her at its meeting on April 4, 2000, unless she made a written request for formal administrative proceedings before the close of business on March 22, 2000. Clemons timely requested a hearing by letter dated March 2, 2000. The Board met on March 7, 2000, and suspended Clemons without pay pending termination of her contract. A memorandum dated March 15, 2000, to the Supervisor of Personnel Records confirms that Clemons was suspended without pay effective March 8, 2000. Clemons has not complained about any alleged defects in notice or other procedures. Clemons does contend, however, that the assistance afforded her at times interfered with her ability to teach and was not always helpful. 12/ The preponderance of evidence showed, however, that the interventions prescribed for her benefit were appropriate and designed to help Clemons overcome her noted performance deficiencies. In short, the greater weight of the evidence established, as fact, that the Board followed the procedures and met its substantive responsibilities under Section 231.29(3)(d), Florida Statutes. Clemons did not correct all of the performance deficiencies that were identified at the outset of her performance probation in October 1999. At hearing, Clemons admitted that deficiencies in the area of behavior management had not been "totally corrected" by the end of the 90-day probation in February 2000. (T. 134.) While Clemons maintains, with some evidentiary support, that she made progress during the probation period, the established fact is that performance deficiencies, at least in the area of behavior management, remained as of February 11, 2000. In sum, the greater weight of the evidence established, as fact, that Clemons' performance deficiencies were not "satisfactorily corrected" during the 90- day probation, as that phrase is used in Section 231.29(3)(d)2.b., Florida Statutes. The greater weight of the evidence failed to show, however, that Clemons was guilty of any "just cause" for dismissal within the meaning of Section 231.36(1)(a), Florida Statutes. 13/ Specifically, as will be discussed below in the legal conclusions, a preponderance of evidence did not show, as fact, that Clemons either committed "misconduct in office" or demonstrated "incompetency" as those terms are defined in Rule 6B-4.009, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board: (1) reinstate Clemons and pay her back salary from March 8, 2000, through the date of reinstatement, pursuant to Section 231.36(6)(a), Florida Statutes; and (2) terminate Clemons' employment pursuant to Section 231.29(3)(d), Florida Statutes. DONE AND ENTERED this 28th day of December, 2000, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2000.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was the victim of an unlawful employment practice by allegedly being discriminated against as to a demotion and pay decision on the basis of race and sex, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Gwendolyn Salter, is an African- American female who was initially employed by International Paper in June 2000 as an Operator. Shortly thereafter she was promoted to the position of Lumber Grader and on December 15, 2001, was promoted to the hourly position of Lead Grader. The Respondent, International Paper Company, is a forest product company. At its McDavid, Florida facility it operates a sawmill which produces lumber and other building products for sale to forest product dealers, lumber yards, and dealers in the construction industry. The sawmill opened in the year 2000. It is very important to determine the value of all pieces of lumber a sawmill produces. Variance in the grade of a given board can mean the difference in several dollars in value per board. In order to determine and set the value or price of a piece of lumber, the sawmill must employ Lumber Graders. The Graders inspect lumber to determine the type and number of defects and therefore to determine what the grade of a given board is, including the determination of whether a board should be trimmed to eliminate some defects. The Southern Pine Inspection Bureau (SPIB) promulgates standard lumber grading rules, which are accepted and applied by all members of the lumber-producing industry that are members of the Southern Pine Association. The rules govern how each board is graded. Boards are basically graded one, two, three, four or MSR. Number one is the best grade and a board with the most knots or other defects would be graded a four. An MSR board is generally a grade two board that is particularly strong. Such boards are primarily used for structural members. When grading lumber, the graders determine in the grading process whether a board should be trimmed in order to remove defects to enhance its grade and value. If there is a defect at the end of the board, for example, the board can be trimmed to the next shorter standard length, which would actually increase the value of that board. Since a board's value can vary several dollars per piece, depending on its grade, the integrity of the grading system is integral to the successful operation and profitability of the Respondent's sawmill. The McDavid Mill operated with four shifts. There were about four to five graders working on each shift. They worked on only the "dry end" of the mill. That means that they worked grading lumber after it was sawed in the sawmill, had been kiln dried, to remove excess moisture, and dressed in the planer mill. Then it was graded, including any necessary final trimming. The graders, have approximately two seconds to observe a board, flip it to look for defects on all four sides, and grade it. They look for natural defects, including knots, and make a mark or a symbol on a board indicating its grade. Additionally, the McDavid Mill has a machine vision grader (MVG) that automatically grades the wane and the size of each board. Wane is a defect involving a tapering or lessening of a board's proper dimension generally caused by the board being sawn near the outside margin of a log so that the logs curvature and natural taper and bark tend to reduce the size and square dimension along the edge of a board. The Petitioner was promoted to the position of "Lead Grader" on December 15, 2001. It thus became her responsibility to review the performance of each of the graders at the facility. The McDavid Mill through its operations manager, Alan Orcutt, instituted a new Grader Performance System in November 2003. The new system rated graders every eight weeks based on their grade decision accuracy, their trim decision accuracy, and their knowledge of grading rules. A grader's pay could vary every eight-week period depending on his or her performance during the previous eight week period. The Lead Grader, the Petitioner, was charged with implementing this system. It was the responsibility of the Lead Grader to ensure that at least 1200 boards were reviewed for each grader, each eight-week period, either by the Lead Grader, by the MVG operator, or by SPIB reviewers. Essentially, the SPIB reviewers or inspectors would select a "pack" of boards and review them to ensure that the graders had graded those boards properly. The reviewers would record if a board was above grade, below grade, or properly graded. Secondly, the Lead Grader was responsible for reviewing the graders' trim decision accuracy. The Lead Grader was required to review at least 100 "trim boards" for each grader for each period, to determine if the graders made the correct trim decisions. The SPIB inspectors would record the percentage of boards trimmed accurately. For board trimming decisions, the board is not processed, but is placed into a pack where it is viewable in its entirety by the reviewer. The reviewer sees exactly what the grader saw in looking at the board, and thus can determine whether or not the grader made the correct decision about whether to trim the board and, if so, how much, and where. In other words, the viewer can determine whether it was appropriate to make a two-foot cut on one end, whether or not a knot should be cut out of the board or whether it was under-trimmed or over-trimmed. The Lead Grader was also responsible for monitoring the graders' knowledge of lumber grading rules. The Lead Grader was thus required to give two 25-question written examinations (test) every eight-week period to graders concerning the written grading rules. The Lead Grader was required to administer the test twice per eight-week period on a crew-by-crew basis, correct the answers and return a copy to the grader with the correct answers and an overall score. In order to ensure the integrity of the testing process, the tests were only allowed to be given in group settings. Tests were not allowed to be given to individual graders. There had to be more persons present in the testing room than just the Lead Grader and one individual grader being tested. The graders were ranked B, A, or AA, and their pay would be adjusted accordingly. AA was the highest rating and was paid the highest salary rate. The ranking were based on a combination of grading accuracy, trim decision accuracy, and scores on the grading examination. In order to be ranked AA, for example, a grader would be required to have at least two percent of boards above grade, two and a half percent below grade, with 95 percent trim decision accuracy and 90 percent correct answers on the written test of grading rules knowledge. Depending on the scores, he or she could change ranks each eight-week period and thus change the salary level. The McDavid Mill's grader performance system was thus implemented in November 2003. Mr. Orcutt discussed the Lead Grader performance expectations with the Petitioner during a meeting with all graders. Essentially, Mr. Orcutt explained that the Petitioner was responsible for implementing the new performance system, specifically: re-grading 1200 boards per grader per period, reviewing 100 trim boards per grader per period, and providing at least two grading exams to each grader, each period. When the Grader Performance System was implemented in November 2003, the manager, Mr. Orcutt, intended that the first eight-week period would be a "dry run" in which the results of the grading of the various graders would have no effect on pay rates. The second eight-week period which ran from January to February 2004, was supposed to be "for the record" and would affect pay rates. Ultimately, Mr. Orcutt determined that the Petitioner's data on the graders was inaccurate and incomplete, and therefore he decided to extend the dry run until the third eight-week period during which pay rates would be affected by the graders' performance ratings. On February 6, 2004, Mr. Orcutt provided the Petitioner her performance review. In that review, Mr. Orcutt stated that the Petitioner had "not met expectations." He explained that this referred to the Petitioner's failure to keep track of the performance of all the graders, as well as deficiency issues regarding the grade rule test being administered inappropriately. On February 27, 2004, Mr. Orcutt issued a 30-day performance improvement plan to the Petitioner. In it he put her on notice that she must improve her performance in the execution of her role as a Lead Grader. He explained that during the first two months of 2004, the Petitioner had failed to meet the minimum expectations of the Lead Grader performance standards provided to her in November 2003. Specifically, this referred to Mr. Orcutt's finding that the Petitioner had failed to review the requisite number of boards during the first two months of 2004. The Performance Improvement Plan also explained that if the Petitioner failed to meet the expectations that had been explained to her in November 2003, that she would be removed from her position as Lead Grader and demoted to a Shift Grader position. Mr. Orcutt also decided to transfer the responsibility for in-putting the grader data into the computer to the accounting department. Mr. Orcutt explained that he had received complaints from graders to the effect that the Petitioner was failing to accurately keep records of the number of boards being reviewed, as entered into the computer, which could affect the pay rate of the graders. Mr. Orcutt believed that this change would allow the Petitioner to focus on monitoring the graders. Jessie Ford is an African-American male. He was hired by International Paper at the McDavid Mill in March 2004 as a Dry-End Superintendent. He was hired to replace Mr. Orcutt, who had been promoted. Mr. Ford was responsible for safety, production, and quality of the dry-end production portion of the mill, which included supervision of the graders. During his first few months he monitored the Petitioner's performance and determined that the Petitioner appeared to be complying with the Lead Grader performance expectations. He did, however, verbally counsel the Petitioner about giving tests to individual graders, instead of in the required setting of administering tests to the group of graders simultaneously. In August 2004, Mr. Ford asked the Petitioner if she had completed the requisite number of board re-grades in accordance with the lead grader performance expectations. Although the Petitioner indicated to him that she had completed the re-grades, a review of the data by Mr. Ford and Mr. Orcutt indicated that the Petitioner was under the required board count for re-grading as to several of the graders. Mr. Ford and Mr. Orcutt met with the Petitioner to ask her about the missing boards and also about the discrepancy in what she had told Mr. Ford. The Petitioner explained that she believed that she had reviewed 1200 boards. She claimed that she had reached 1200 by combining the boards that were reviewed for trim tests, with boards reviewed with grading. This explanation revealed both that the Petitioner had failed to meet her minimum expectations and also that the Petitioner appeared not to understand the program almost nine months after it had been implemented. Further, there were a couple of graders, for whom the re-grading count remained low, even if one (wrongly) counted their trim test boards in the aggregate total. Mr. Ford and Mr. Orcutt also spoke to the Petitioner about giving tests to graders on an individual basis, as was prohibited by the performance evaluating system that had been implemented in November 2003. That system required that the test be only given to a group of people or more than one person at a time in order to ensure the integrity of the test and of the performance evaluation system. When confronted with the question of whether she had given a test to an individual alone, the Petitioner responded that there was "someone else" in the room during the test. This again demonstrated to Mr. Ford and Mr. Orcutt that the Petitioner did not really understand the requirements of the performance evaluation or testing system. Following that meeting with the Petitioner, Mr. Ford and Mr. Orcutt met with the human resources manager, Karen Rutherford, as well as the mill manager, Alan Smith. They discussed the issues and possible solutions regarding the Petitioner's performance. Mr. Ford explained in his testimony that the group determined that it was his decision whether or not to discipline the Petitioner. Mr. Ford therefore reviewed the November 2003 performance expectations and the February 2004 Performance Improvement Plan directed at the Petitioner. Mr. Ford determined that the Petitioner had been properly advised of her responsibilities as Lead Grader, the consequences of inadequate performance after imposition of the improvement plan, and had failed to meet expectations. On August 27, 2004, he demoted the Petitioner from Lead Grader to a Shift Grader role or position, in accordance with the February Performance Improvement Plan. Mr. Ford explained to the Petitioner that she had failed to obtain the proper amount of boards in her re-counts, and that she had improperly given tests to graders on an individual basis, as prohibited. The Petitioner claims that she was discriminatorily demoted to a grader from the Lead Grader position and was discriminatorily denied a raise. She grounds this position on the contention that similarly-situated employees outside her protected class were treated differently and more favorably in similar situations, and that her temporary supervisor in the fall of 2003, Mr. Garrett, had a discriminatory attitude toward her and against women. This contention is based upon an alleged discriminatory statement he made and upon the fact that he also required her, in addition to her normal Lead Grader duties, to work on the MVG machine when its regular operator had been fired, and after she had trained his replacement. In essence, the Petitioner complains that Jamey Garrett was prejudiced against her and once made a comment that he "really did not care for working with women." Mr. Garrett had temporarily been placed in partial supervision of the Petitioner as Acting Dry-End Superintendent in the late summer and fall of 2003. At about this time, Mr. Orcutt, and/or Mr. Garrett, acting singly or in concert, directed the Petitioner to assume operation of the MVG machine when its normal operator was fired. She also was required to train a replacement operator for the machine. That effort took about three weeks. Thereafter she asked that her temporary assignment to the machine operation be ended. Mr. Garrett instead told her that he needed her to operate it through the rest of 2003 (approximately two to three months). She maintains, in her own testimonial opinion, that Mr. Garrett and/or Mr. Orcutt "loaded her up" with this extra duty in order to intentionally cause her to fail at her duties as Lead Grader. There is no evidence other than the Petitioner's unsupported opinion, that Mr. Garrett or Mr. Orcutt had this intent in requiring her to perform the extra duty, which incidentally began well before the implementation of the November 2003 new performance and evaluation standards for graders, which the Petitioner, as Lead Grader, was required to learn and implement. The only evidence the Petitioner provided concerning Mr. Garrett's discriminatory animus towards women is the alleged statement referenced above. Mr. Garrett denied making that comment. In fact, however, he did admit, regarding concerns he had about working as a supervisor, (which had not been his permanent assignment), that he asked a promotion board to help him work better with women. This was because he feared that his size (he is 6'5") was intimidating to women. This statement does not indicate any discriminatory intent toward women, nor does the alleged statement about not caring about working with women indicate any such intent, especially because of its isolated nature. Moreover, the persuasive evidence shows that Mr. Garrett actually worked well with women and that he promoted several women during his tenure in a supervisory role. The Petitioner herself recalled a conversation with Mr. Garrett in about March 2004 in which he stated that he thought he and the Petitioner were getting along a lot better. Mr. Garrett's only supervisory authority over the Petitioner was as a set-up supervisor near the end of 2003 and the beginning of 2004, during which time he did not have actual disciplinary authority over the Petitioner. That responsibility remained with Mr. Orcutt. He did apparently have the ability to make recommendations concerning employee matters, including discipline, to Mr. Orcutt. In fact, the evidence reveals that the only disciplinary issue concerning the Petitioner in which Mr. Garrett was actually involved occurred on or about March 2004. Mr. Garrett had been instructed by Mr. Orcutt to issue disciplinary sanctions to the Petitioner. Mr. Garrett therefore met with the Petitioner and allowed her to explain her version of the situation. After listening to her side of the story he accepted her explanation as correct and tore up the disciplinary memo and imposed no discipline. Therefore, although she received a less satisfactory performance evaluation in February 2004 and was placed upon a Performance Improvement Plan in late February 2004, no formal discipline was imposed upon the Petitioner until her demotion in August 2004. The Petitioner contends that she was denied a raise because of her sex. The only evidence related to a raise was testimony provided by Mr. Garrett, who indicated that the Petitioner could not receive a raise because she was already receiving the maximum pay for her grade level as a Lead Grader. The raise in question at that time was given to the other graders but not to the Lead Grader, the Petitioner, because she was already making the maximum of her pay range. Indeed, the Petitioner admitted that the raise was given to all graders, including black graders and female graders. The Petitioner acknowledges that she was the only individual denied a raise at the time in question. Mr. Garrett's explanation as to the reason she was not given a raise, when the others of both races and sexes were, is accepted as accurate. Further, the Petitioner admitted that she was also given the same rate of pay as the highest ranking, AA graders once she was demoted out of the lead grader position. The Petitioner's contention based upon her own opinion that she was denied a raise because of her race or sex is not deemed credible and persuasive under these circumstances. On June 8, 2005, the Petitioner filed her charge of discrimination with the Commission. In the charge she claimed that she had been discriminated against between August 2004 and December 2004, based upon her race and sex. She claimed discriminatory demotion as well as being discriminatorily denied a raise. The Commission after its investigation issued a Determination of No Reasonable Cause to believe that an unlawful practice had occurred. That determination was issued on December 13, 2005, and the Petition for Relief was filed January 26, 2006, initiating this proceeding. The Petitioner claimed in her Petition for Relief that in addition to being demoted and denied a raise because of her race and sex that the Respondent maintained a hostile work environment based upon issues of sex and race. The Petitioner also maintained that she was replaced when demoted by a white male, who took over the position of Lead Grader. She contends that the white male, Mr. LePage, was allowed to maintain a count of his own boards or pieces of lumber that he had reviewed while monitoring the graders, while the Petitioner's numbers of reviewed or inspected boards were maintained in the computer record by the company receptionist. She also maintained that Mr. LePage gave a non-proctored skill test to graders, but was not demoted for it, whereas the Petitioner was demoted for allegedly giving a non-proctored skill test to a grader or where no one else was present in the test room. The persuasive evidence shows that the Petitioner was not similarly situated with her replacement, Mr. LePage. Although she contends that Mr. LePage also provided a test to a grader individually instead of giving the test only in a group setting and yet was not demoted, their circumstances are not comparable. Mr. LePage had only held the Lead Grader position for a few months when the allegation against him was raised. When it was raised, his first disciplinary incident in that position, Mr. Ford counseled him and admonished him that he was only to give test in group settings. The Petitioner, however, had been in the Lead Grader position for a number of years and had been warned about the testing issue at least twice previously. Moreover, she had been admonished about her performance in conjunction with her February 2004 performance evaluation and had already been placed on a performance improvement plan at that time in part for that same issue concerning individualized testing. Thus she was not similarly situated as an employee to Mr. LePage who was disciplined less harshly because it was his first such transgression and warning. In a similar context, it is inferred that Mr. LePage was allowed to input his own board counts into the computer system because, unlike the Petitioner, he had not told management that he had performed and reported the proper board counts when that was proved not to be the case.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Frederick J. Gant, Esquire Albritton & Gant Post Office Box 12322 322 West Cervantes Street Pensacola, Florida 32581 Vincent J. Miraglia, Esquire International Paper Company 6400 Poplar Avenue, Tower II Memphis, Tennessee 38197
The Issue The issue presented is whether Petitioner should terminate Respondent's professional service contract for his failure to correct his performance deficiencies within his 90-calendar-day probation period.
Findings Of Fact At all times material hereto, Respondent, Jose L. Rojas, has been employed by The School Board of Miami-Dade County, Florida, as a teacher pursuant to a professional service contract. During the 2004-2005 school year, he taught regular sixth-grade math classes at Redland Middle School. Teachers employed by the School Board, including Respondent, are evaluated pursuant to the Professional Assessment and Comprehensive Evaluation System, known as PACES. PACES was collectively bargained with the teachers' union and approved by the Florida Department of Education in 2001 as being in statutory compliance for teacher evaluations in Petitioner's school district. PACES focuses on student learning and teacher professional development, as well as on teaching behaviors. In PACES, there are seven domains: six are to be observed during a classroom observation, and the seventh domain deals with professional responsibilities demonstrated outside the classroom observation. The domains reflect the required statutory competencies of Section 1012.34, Florida Statutes. Each domain has teaching and learning components, and each component has indicators, 44 of which are required to meet standards under PACES. The 44 indicators are fundamental units of observation that are used to make professional judgments about the quality of learning and teaching. They represent the basic level of teaching to be demonstrated by all teachers in Petitioner's school district, i.e., the minimum requirements. They are the objective standards described in the PACES manual. Teachers have PACES manuals and access to the PACES Internet website. The standards are also repeated in any professional improvement plan, known as a PIP. It takes only one unacceptable indicator for a domain to be rated below performance standards. One below-standard domain indicates a teacher's non-compliance with statutorily- required competencies. The Florida Comprehensive Assessment Test (FCAT) measures student performance on the State's objectives for Florida's required curriculum, the Sunshine State Standards. While Petitioner's school district, as a whole, must utilize the FCAT data and indicators of student performance, there is no similar requirement for evaluating teachers by the results of the performance of their students on the FCAT (or other local assessments for subject matters not covered by the FCAT). Individual evaluations of teachers, however, must address student performance. PACES addresses student performance in every domain. What is assessed is whether the teacher is monitoring and gauging student progress in the classroom, making sure that the students are mastering the required curriculum. Teachers are expected to use their students' FCAT scores from the prior year for planning, pursuant to PACES domain I, to meet the students' deficiencies. Redland utilizes FCAT results in this manner. Further, a teacher's teaching strategies and activities are required to address FCAT expectations. At the beginning of the school year, teachers at Redland receive copies of the scope and sequence for what the students are to learn during the school year. The teachers develop the curriculum and timelines for meeting benchmarks to be covered during the school year. PACES domain II, as another example, deals with the teacher's management of the learning environment. If time is not managed and is, instead, wasted, the students' achievement of the Sunshine State Standards will be impacted, which will affect FCAT scores. PACES domain IV, as yet another example, requires teachers to informally assess the students' engagement in learning to assess their performance to ascertain whether the students are mastering the Sunshine State Standards. All of the administrators who were PACES observers in this case have had extensive training in the standards to be observed and evaluated in teacher performance and student learning and are, therefore, authorized to perform PACES observations, which are based upon what the observer objectively observes while in the classroom. The performance probation process in Petitioner's school district, like the PACES teacher evaluation process, was collectively bargained with the teachers' union. The process is as follows: if there is an observation conducted by an administrator that indicates a teacher is performing below standards, it becomes the "initial observation not of record." The administrator meets with the teacher, goes over the observation, makes suggestions for improvement, and notifies the teacher that he or she will be observed again in approximately three weeks. The administrator offers the teacher the assistance of a professional growth team (PGT). Use of a PGT is voluntary on the part of the teacher at this point. The PGT is part of the professional development aspect of PACES. PGTs are composed of experienced peer teachers who are extensively trained in PACES and are authorized to give support and assistance to teachers to improve classroom instruction. The same administrator who conducted the "initial observation not of record" must conduct the next observation, the "kick-off observation," which is the first observation of record in that school year. If this observation reveals below- standards performance, a conference-for-the-record (CFR) is held. A PGT and a PIP are provided to the teacher. The performance probation period begins the day after a PIP is given to the teacher. The teachers' union and Petitioner then mutually agree on the calendar for counting the 90 days. There must be two official observations during the performance probation period. The teacher must meet all 44 required indicators in order to meet performance standards during the teacher's performance probation. If any indicators are below performance standards, PIPs are again given. There are four levels of PIP activities, which are progressively more complex. A "confirmatory observation" takes place after the 90th day to determine whether the teacher has corrected his or her deficiencies. The "confirmatory observation" must be completed within 14 days after the conclusion of the performance probation, and the evaluator must forward a recommendation to the Superintendent of Schools. Within 14 days of receiving the evaluator's recommendation, the Superintendent must notify the teacher whether he will recommend to the school board that the teacher's employment be continued or terminated. It is not sufficient for the teacher to improve on only some of the deficient indicators. It has been the custom and practice under the collective bargaining agreement that remediation occurs only when the teacher meets standards in all of the required indicators. Respondent's initial observation was conducted by Assistant Principal Fahringer on September 23, 2004. Respondent was teaching a class of 20-23 students. Respondent told the students to take out their agenda books which contained their homework. As Respondent went around the classroom checking each student's homework, the remainder of the students just sat and talked, waiting for a lesson to begin. They were not working on math. Out of the two-hour block of class time, the class was off-task about 25 percent of the time. Respondent failed to meet performance standards in components and indicators of domain II, managing the learning environment, and domain IV, enhancing and enabling learning. Pursuant to the agreed-upon procedures, the observation became "not of record." Assistant Principal Fahringer met with Respondent September 28, 2004, went over the evaluation, and explained why Respondent had not met performance standards. Fahringer gave Respondent suggestions for improvement and advised him that she would return to do a follow-up observation. She offered Respondent a PGT, which he accepted. On October 19, 2004, Fahringer performed Respondent's first observation of record, the "kick-off observation." Respondent was giving a lesson on fractions, decimals, and percentages to 32 students using cups of M&Ms and a chart. Respondent told the students to divide into groups of four. There followed much noise and confusion. As Respondent went from group to group, he did not monitor the other seven groups. Students threw M&Ms and paper wads. Respondent did not meet performance standards in components and indicators of domains II and IV. He did not meet standards in domain II because the learning did not begin promptly. After a five-minute delay, another five minutes were wasted while Respondent counted out the M&Ms. Ten minutes wasted at the beginning of the class is a significant amount of time since time spent on-task improves achievement. There were delays in the organizational and teaching/learning activities. When Respondent told the students to divide into groups of four, some students appeared uncertain as to what group they were in and, instead, milled around talking noisily. Some students remained off-task throughout the lesson. Respondent did not address the off-task behavior because he did not appear to even notice it while he focused on one group at a time. Students came to Respondent with their agenda books, "visiting" other students and talking with them on the way. Eight students were distracted, noisy, and off-task, but Respondent failed to redirect them. Respondent's expectations about acceptable behavior had apparently not been made clear to the students. Although he told them to raise their hands and not to talk, they continued to talk noisily to each other for 50 minutes. Respondent failed to effectively monitor the class throughout the lesson. When he was with one group, he did not use management techniques to diffuse the unacceptable off-task behavior of the other groups. The remaining seven groups did not work (no learning took place) while they waited for Respondent to come to them. Respondent did not meet standards in domain IV because he did not introduce the purpose of the lesson. The students were told how to count the M&Ms and complete a chart, but there was no explanation as to what they were to learn. The students did not understand that they were learning the relationship among fractions, decimals, and percentages. Respondent did not give clear and complete directions. He told the students that they were going to "integrate" decimals, percents, and fractions, a meaningless word choice. The directions did not include any explanation of content or integration of mathematical concepts. Respondent did not demonstrate accurate content knowledge. He gave inaccurate and unclear information to the students. He counted the various colored M&Ms and put the numbers on the chart. On the chart, he explained that the decimals--.35, .10, .25, .17, .03, and .71--equal one, when in fact they equal 1.61. Also on the chart, Respondent explained that the percentages--35%, 10%, 25%, 17%, 3%, and 71%--equal 100%, when in fact they equal 161%. The students accepted the inaccurate information. On the line of the chart indicating the fractions, Respondent reduced some of the fractions leaving different denominators, which made the addition of those fractions difficult. On October 29, 2004, Principal DePriest and Assistant Principal Fahringer held a CFR with Respondent to address Respondent's sub-standard performance, his performance probation, recommendations for improving the specific areas of his unsatisfactory performance, and Respondent's future employment status with Petitioner. Respondent's input was sought, and he was formally assigned a PGT. Respondent was given a copy of the summary of the CFR and a PIP on November 1, 2004. The PIP required him to read and summarize pertinent sections from the PACES manual by November 22, 2004. Respondent's performance probation period began November 2, 2004, the day after he received the PIP. He was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed time. Respondent's PGT provided assistance to him throughout his performance probation. Respondent failed to complete his PIP activities by the November 22 deadline. On December 2 he was given another 24 hours to comply, which he did. On November 24, 2004, Respondent was formally observed in his classroom by Principal DePriest. Respondent was presenting a lesson to 19 students, but the classroom was too chaotic for learning to take place. Respondent again did not meet performance standards in domain II. Learning did not begin promptly. Respondent wasted 12 minutes reprimanding students, taking roll, and answering his personal cell phone while the students were not engaged in learning. There were also inefficient delays in organizational and teaching/learning activities. The students went to the board, one by one, to solve math problems. Respondent spent approximately five minutes with each student at the board while the rest of the class became noisy, walked around, or slept. Respondent failed to monitor off-task behavior or the behavior of the entire class. As Respondent focused on the one student at the board, the other students were off-task for up to five minutes at a time throughout the lesson, talking, putting their heads down, tapping their pencils, and making inappropriate comments such as "Can someone choke me?", "Can someone kill me?", and "Can I die now?". One student simply played with her hair for six minutes. Essentially, everyone was talking, and no one was listening to Respondent. Yet, Respondent did nothing to redirect the students. He did not appear to have classroom conduct rules in place. Thus, Respondent failed to make his expectations about behavior clear to the students. He instructed them not to talk without raising their hands. Nevertheless, eight of the students talked out-of-turn for 20 minutes without raising their hands. DePriest met with Respondent on December 2, 2004, to review the observation. DePriest provided assistance through a PIP to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes on the PACES Internet website. Respondent was to maintain a log and discuss techniques and strategies with DePriest. Respondent's deadline to complete his PIP was January 6, 2005. On January 10, 2005, Respondent was formally observed by Assistant Principal Janice Farrell. Respondent was presenting a lesson on perimeters and surface areas to 22 students. The lesson was disorganized, and there was an "air of confusion" in the class. Many students were being unruly and exhibiting off-task behavior. Therefore, not much learning was taking place. Respondent still did not meet performance standards in domains II and IV that had been previously identified. He also failed to meet performance standards in components and indicators not identified in the kick-off observation of October 19, 2004, and, therefore, not the subject of Respondent's 90-day performance probation or this Recommended Order. Respondent caused inefficient delays in organizational and teaching/learning activities. The learners were instructed to complete a "bellringer" activity, i.e., an activity that is used at the beginning of the class period to engage the students in learning as soon as they enter the room. Although they were instructed to complete it, eight of the 22 students did not receive a bellringer worksheet. Students were asking for materials and attempting the activity unsuccessfully on their own. Respondent appeared unaware of the problem Respondent failed to monitor off-task behavior and disengagement from learning throughout the lesson. One student continuously called out Respondent's name, louder and louder, for five minutes. Students talked and copied each other's answers. While a student walked around stamping the other students' agenda books, they became off-task. A group of three students at a back table remained off-task throughout the lesson, talking, copying each other's answers, and throwing papers. Respondent did not redirect any of these students until the last five minutes of the class. Respondent failed to monitor the whole class effectively. When he went to the back of the room to address a tardy student without a pass, he turned his back on the other 21 students who changed seats, threw papers at each other, and hit each other with rulers. Respondent did nothing to redirect his students. He failed to make the purpose or importance of the learning tasks clear to the students. He did not give a rationale for the bellringer activity, which consisted of answering questions about perimeters and areas of geometric shapes. He also gave the students inaccurate information. He incorrectly calculated the perimeter of a square as 3+3+3+3=15. DePriest and Farrell met with Respondent to review the observation. Farrell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP to help Respondent correct his deficiencies. Respondent's PIP required him to complete self- assessment activities through the PACES website. He was to watch vignettes provided by the website in order to understand what the PACES indicators required of him. Respondent's deadline to complete his PIP was February 11, 2005. Because Respondent's second observation within the performance probation period was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether Respondent had corrected his deficiencies. Principal DePriest performed that observation on February 22, 2005. On that day, management of the learning environment and classroom discipline were non-existent. Respondent was presenting a lesson on geometric shapes to 18 students. While he did have instructions written on the board, there were still the same kinds of delays seen previously, and the students were still not engaged in learning. Overall, the class environment was chaotic. One-third to one- half of the class was off-task at any given time. The class was completely disorganized; the students were not engaged; the students did not pay any attention to Respondent, and very little learning took place. Each time supplies were distributed, commotion resulted. When colored paper was distributed so that the students could trace the shapes, they got into arguments over the different colors, negotiated the trading of colors, and asked Respondent for different colors. When rulers were passed out, the students were not instructed to use them to draw the geometric shapes. Some had already drawn the shapes freehand. Others were dueling with the rulers. Some tore the shapes, rather than waiting until they received scissors. Respondent again did not meet performance standards in domain II as identified in the kick-off observation. Learning did not begin promptly. Respondent spent 10-11 minutes taking roll and reprimanding tardy students. There were inefficient delays in organizational and teaching/learning activities. Respondent allowed students to talk and distract others. Students were not paying attention. Respondent accepted a phone call and made a phone call during the class. He failed to monitor the off-task behavior caused by the manner in which supplies were distributed and failed to redirect the students, including while they argued about paper, scissors, and rulers. DePriest notified Respondent on February 23, 2005, that Respondent had not satisfactorily corrected noted performance deficiencies during his performance probation period and that DePriest would recommend to the Superintendent of Schools that Respondent's employment be terminated. On that same day, DePriest transmitted such a memorandum. On March 9, the Superintendent notified Respondent that the Superintendent would recommend that the School Board terminate Respondent's employment contract for Respondent's failure to correct his noted performance deficiencies during his performance probation. Petitioner has met all procedural requirements and statutory time frames. The FCAT was administered to Florida students in late- February to early-March, 2005. Petitioner received Respondent's students' scores on May 17 and the district-wide FCAT results on May 19, 2005, the day before the final hearing in this cause. The district as a whole showed "tremendous" progress over the prior year. Even though Redland is a "low-performing" school, it likewise showed progress over the prior year in reading and mathematics. Respondent's students, however, failed to follow this trend. Petitioner does not use a teacher's current students' FCAT scores in assessing a teacher's performance because the scores are released too late in the school year. PACES, however, addresses student performance, as statutorily required. Where a teacher's students are observed as being noisy throughout lessons, being confused, not paying attention, and being given erroneous lesson content, there is a clear lack of student performance, and they are not engaged in learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent failed to correct his performance deficiencies and terminating Respondent's professional service contract, effective April 13, 2005. DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 29th day of July, 2005. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Rudolph F. Crew, Ed.D, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue Whether just cause exists to terminate Respondent from employment with the Brevard County School Board.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools in Brevard County, Florida. This includes the power to discipline employees, such as teachers. § 4, Article IX, Fla. Const.; §§ 1001.42(5), 1012.22(1)(f), and 1012.33, Fla. Stat.1 Respondent is a classroom teacher, and as such, the terms and conditions of her employment are governed by the collective agreement between the School Board and The Brevard Federation of Teachers, Local 2098. Respondent has a Bachelor’s degree in exceptional education. On or about November 9, 2006, Respondent, pursuant to an annual contract, was hired by the School Board to provide services as a classroom teacher. Beginning in the 2009-2010 school year, Respondent continued her employment with the School Board pursuant to a professional services contract. During all times relevant to this proceeding, Respondent taught at Hoover Middle School, which is under the jurisdiction of the School Board. At the commencement of the 2014-2015 school year, Respondent taught exceptional education (ESE) students in a self-contained, supported-level class. At approximately the midway point of the 2014-2015 school year, Respondent began teaching a resource math class which was comprised entirely of ESE students. Beginning in the 2017-2018 school year, and continuing through the 2018-2019 school year, Respondent taught one resource math class for a single class-period of the day, and she co-taught, or “pushed-in,” for the other five instructional class periods. In both settings, Respondent taught math to ESE students. By correspondence dated March 26, 2019, Superintendent Mullins advised Respondent of the following: Pursuant to Florida Statute 1012.34, you are being recommended for termination of your Professional Services Contract due to unsatisfactory 1 All subsequent references to Florida Statutes will be to the 2018 codification, unless otherwise indicated. Performance …. The actions leading to this recommendation are as follows: On October 29, 2018, you were provided a 90-day notice advising of performance-related concerns based upon three years of unsatisfactory annual evaluations. Several performance review meetings were held with you, your union representative, and your school Principal to discuss your progress. A review of your past evaluations indicates several attempts at corrective activities through the use of District Peer Mentors and Resource Teachers. After the completion of the 90-day plan, adequate progress was not obtained and is grounds to sever the Professional Services Contract. The School Board uses an “Instructional Personnel Performance Appraisal System” (IPPAS) as a guide when evaluating a teacher’s performance. According to the IPPAS manual, classroom teachers are evaluated on a rubric which consists of five dimensions. The first dimension focuses on “instructional design and lesson planning.” The second dimension focuses on the “learning environment” created and fostered by the teacher. The third dimension focuses on “instructional delivery and facilitation.” The fourth dimension focuses on “assessment,” and the fifth dimension focuses on a teacher’s “professional responsibility and ethical conduct.” IPPAS is approved annually by the Florida Department of Education (FLDOE), and the School Board meets regularly with The Brevard Federation of Teachers, Local 2098, to address any issues concerning the evaluation process. Teachers and evaluators receive yearly training, which covers the various components of the evaluation process. Pursuant to IPPAS, and related statutory provisions, classroom teachers are evaluated annually. The overall score given to a teacher on the annual evaluation is determined by how a teacher scores in the areas of “Professional Practices Based on Florida’s Educator Accomplished Practices (Professional Practices),” and “Individual Accountability for Student Academic Performance Based on Identified Assessments (Student Performance).” The Professional Practices category accounts for 67 percent, and Student Performance accounts for the remaining 33 percent of a teacher’s annual evaluation score. For purposes of quantifying a teacher’s annual evaluation, IPPAS identifies the Professional Practices category as “Part 1 of the Summative Evaluation,” and the Student Performance category as “Part 2 of the Summative Evaluation.” Part 1 of the Summative Evaluation is completed in the spring of each school year and consists of the supervising principal’s annual evaluation of the teacher, the teacher’s self-assessment, and the collaboration and mutual accountability score. The evaluative components of Part 1 of the Summative Evaluation are comprised of the previously referenced “five dimensions.” Part 2 of the Summative Evaluation is determined based on student academic performance data (VAM score) as calculated by the FLDOE. VAM scores are released by FLDOE in the fall, and these scores reflect student performance for the preceding school year. Consequently, a teacher will not receive an overall annual evaluation score for the immediate preceding school year until the fall semester during which VAM scores are available. As a practical matter, this explains, in part, why the recommendation for termination letter sent to Respondent by Superintendent Mullins was issued on March 26, 2019.2 2015-2016 SCHOOL YEAR Respondent, on or about April 25, 2016, received Part 1 of her Summative Evaluation for the 2015-2016 school year. Respondent received a score of 27.71 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the category of “Needs Improvement.” On or about November 2, 2016, Respondent received Part 2 of her Summative Evaluation for the 2015-2016 school year. Respondent received a VAM score of 56.71 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2016-2017 SCHOOL YEAR Respondent, on or about April 5, 2017, received Part 1 of her Summative Evaluation for the 2016-2017 school year. Respondent received a score of 20.42 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about November 13, 2017, Respondent received Part 2 of her Summative Evaluation for the 2016-2017 school year. Respondent received a VAM score of 50.42 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2 VAM scores for the 2017-2018 school year were released on or about October 19, 2018. As discussed elsewhere herein, Respondent was placed on 90 days probation following the release of her VAM score. The timing of the release of the VAM score, coupled with the 90-day probationary period and related matters, account for the March 2019 date of Superintendent Mullin’s letter to Respondent. 2017-2018 SCHOOL YEAR Respondent, on or about May 3, 2018, received Part 1 of her Summative Evaluation for the 2017-2018 school year. Respondent received a score of 34.58 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about October 19, 2018, Respondent received Part 2 of her Summative Evaluation for the 2017-18 school year. Respondent received a VAM score of 64.58 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” A PLAN FOR ADDRESSING PROFESSIONAL DEFICIENCIES The School Board, in order to address Respondent’s professional deficiencies as identified during the relevant evaluation periods, provided support to Respondent through the utilization of Professional Development Assistance Plans (PDAPs). PDAPs are designed to provide a teacher with opportunities for professional development, which includes access to online resources, training activities and courses, and opportunities to work with School Board resource and peer mentor teachers. The School Board, acting through Respondent’s supervising administrators, agreed in the PDAPs to support Respondent’s professional growth and development as follows: By providing access to the “District Peer Mentor Teacher for collaboration on dimension 3.” By conducting “informal observations documented in ProGOE with feedback for improvement.” By providing “resources on utilizing formative assessment to check for understanding.” By providing “resources regarding implementing differentiated instruction.” By providing “resources on the utilization of Webb’s Depth of Knowledge.” By providing “exemplary sample lesson plans as a model … to follow.” By providing “pacing guide if needed.” By meeting every two weeks to review weekly lesson plans. By providing Respondent with “an exemplary teacher to observe, as well as a substitute [teacher] for class coverage during observation.” By providing a list of Professional Development courses on classroom management, as well as a substitute teacher to cover Respondent’s class while she attends the course. By providing “assistance and specific feedback from school based coaches.” By completing “informal observations on a bi- monthly basis, and provid[ing] feedback.” The evidence establishes that the School Board honored its commitment to Respondent as outlined in the respective PDAPs. 90 DAYS OF PROBATION, AND RECOMMENDATION FOR TERMINATION By correspondence dated October 29, 2018, the School Board advised Respondent of the following: In accordance with section 1012.34(4), F.S., this shall serve as the District’s notification of unsatisfactory performance. Please be advised that your Professional Service Contract for the 2018-19 academic year is on a probationary status for ninety (90) days. Your contract is being placed on probation due to your receiving an overall “Needs Improvement” rating on your last three (3) consecutive annual performance evaluations. See also section 1012.22, F.S. During the next ninety (90) days, you will be evaluated periodically. You will be apprised of any progress achieved in writing. You will work with the administration of your school to assist you in obtaining opportunities to help correct any noted deficiencies. After February 25, 2019, the ninetieth (90th) day, administration has fourteen (14) days to assess your progress. If no improvement is shown, administration will notify the Superintendent if you do not rate an overall Effective on the Summative Part 1 of your evaluation. Sincerely, Burt Clark, Principal Hoover Middle School Respondent, during her 90-day probationary period, continued to receive professional development services from the School Board, which included working with a peer mentor teacher, participating in CHAMPs training, receiving assistance from a math content specialist, and observing an exemplary math teacher. Burt Clark was the principal at the school where Respondent worked when she was placed on probation. As the principal, Mr. Clark served as Respondent’s supervisor and was responsible for evaluating her performance. During Respondent’s probationary period, Mr. Clark regularly met with Respondent and her union representative to discuss Respondent’s progress and offer assistance. In addition to meeting with Respondent, Mr. Clark also conducted one interim evaluation, four informal observation, and two formal observations of Respondent’s performance. Mr. Clark also conducted a number of “walk-throughs,” which provided additional insight into the status of Respondent’s professional development. While it is true that Mr. Clark’s observations of Respondent mainly occurred in the classroom where Respondent was the teacher of record, as opposed to Respondent’s work as a “push-in” teacher, Mr. Clark credibly testified that he had sufficient data to assess Respondent’s performance. Mr. Clark, at the end of the probationary period, determined that Respondent’s professional deficiencies remained, and on March 6, 2019, he made the following recommendation to Superintendent Mullins: Ms. Lisa Lemieux had an overall unsatisfactory performance appraisal. We have worked with her to try to improve her instructional strategies; but, it has not been successful in changing the behavior to better serve the students assigned to her. As defined in [section] 1012.34(4), [Florida Statutes], February 25, 2019, was the 90th day since the notification of her 90-day probation for this contract year and after demonstrating no improvement on the Summative Part 1, I have assessed that the performance deficiencies have not been corrected. I would recommend the termination of her employment with Brevard Public Schools. Burt Clark, Principal Hoover Middle School After receiving Mr. Clark’s recommendation to terminate Respondent’s employment, Superintendent Mullins reviewed Respondent’s last three years of evaluations, considered the extensive support and training provided to Respondent by the School Board, and concluded that termination of Respondent’s employment was warranted and justified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Brevard County enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 16th day of March, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2020. COPIES FURNISHED: Amy D. Envall, General Counsel Brevard County Public Schools 2700 Judge Fran Jamieson Way Viera, Florida 32940 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Howard Michael Waldman Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Dr. Mark Mullins, Superintendent School Board of Brevard County 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Matthew Mears, General Counsel Department of Education Turlington Building 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
The Issue The issue in this case is whether Petitioner, Monroe County School Board, has “just cause” to terminate the employment of Respondent, Maryeugene E. Dupper, as a teacher for Petitioner.
Findings Of Fact The Parties. Petitioner, Monroe County School Board (hereinafter referred to as the “School Board”), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Monroe County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Respondent, Maryeugene E. Dupper, has been a classroom teacher with the School Board since August 2000. She began her employment as a substitute teacher and was subsequently employed as a full-time teacher at Poinciana Elementary School (hereinafter referred to as “Poinciana”), where she worked with profoundly handicapped students. She remained at Poinciana through November 2006. Throughout her employment at Poinciana, Ms. Dupper received good performance evaluations, although they did decline over time. On November 17, 2006, Ms. Dupper transferred to Gerald Adams Elementary School (hereinafter referred to as “Gerald Adams”), where she taught a Pre-K Exceptional Student Education or ESE class for the first time. At the times pertinent to this proceeding, Ms. Dupper was employed as a teacher pursuant to a professional services contract. 2006-2007 School Year. From the beginning of her employment at Gerald Adams, Ms. Dupper evidenced difficulty implementing the curriculum in a meaningful way. In particular, Ann Herrin, Principal at Gerald Adams, whose testimony has been credited, found that Ms. Dupper was having a difficult time establishing the scope and sequence of lessons and effective classroom management techniques. Among the deficiencies Ms. Herrin found with Ms. Dupper’s performance was the lack of progress notes for her students. Ms. Dupper failed to keep any notes indicating that she had performed any formal evaluation of her students. When Ms. Herrin asked Ms. Dupper how she could tell whether her curriculum was successfully reaching each student, Ms. Dupper simply replied that “I am a teacher and I just know.” After conducting two formal observations and a number of informal observations of Ms. Dupper, Ms. Herrin, in her 2006- 2007 annual teacher evaluation concluded that Ms. Dupper “Needs Improvement” in Management of Student Conduct, Instruction Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Herring used a Teacher Annual Assessment Plan Comprehensive Assessment Form for this evaluation. Overall, Ms. Herrin rated Ms. Dupper as “Needs Improvement” noting that “Curriculum content is lacking – making the learning environment unacceptable and unmanageable.” Subsequent to Ms. Herrin’s evaluation of Ms. Dupper, Ms. Herrin issued a Professional Development Plan for Ms. Dupper dated May 30, 2007. Ms. Dupper, who had been provided assistance throughout the school year by Gerald Adams administrative staff, was offered guidance in the Professional Development Plan intended to improve her performance as a teacher. That guidance is accurately described in paragraph 9 of the School Board’s Proposed Recommended Order. At the beginning of the 2007-2008 school year, the School Board instituted a new curriculum for use by Pre-K teachers. That curriculum, the Galileo Curriculum (hereinafter referred to as “Galileo”), is a computer-based program which includes lessons plans and benchmarks and goals for teachers to use in assessing student performance. Although Galileo includes a means for teachers to keep track of student progress, Galileo is not a student evaluation instrument intended for use in “testing” student progress. 2007-2008 School Year. During the 2007-2008 school year, Ms. Dupper was observed on October 11, November 8, and December 18, 2007, and on March 20 and 26, and May 6 and 22, 2008. Despite efforts to provide Ms. Dupper with professional assistance and making several changes in the teacher’s aide assigned to assist her, Ms. Dupper’s performance remained inadequate. Ms. Dupper was provided with assistance by teachers at Gerald Adams, including a “mentor," and by the head of the Exceptional Student Education department and an Exceptional Student Education Program Specialist. Ms. Dupper was observed on one occasion by Ms. Herrin when every student in Ms. Dupper’s “learning center” left the area while she continued to “teach.” One student stood on a table dancing, uncorrected by Ms. Dupper. On two occasions, a student left Ms. Dupper’s classroom altogether and were taken back to Ms. Dupper’s classroom before she realized they were gone. On nine different occasions during the 2007-2008 school year, Ms. Herrin requested a discipline plan from Ms. Dupper. No plan was ever provided. Ms. Dupper’s use of Galileo was minimal during the 2007-2008 school year. The system contained a checklist, by domain or skill, which was intended for use by a teacher in determining whether each student was learning the listed skills. Ms. Dupper rarely used the system, however, only logging into the Galileo system 19 times. Nine of those times were on the same day and four were on another day. Other Pre-K teachers utilized Galileo an average of 100 times more than Ms. Dupper. Ms. Herrin’s 2007-2008 annual evaluation of Ms. Dupper, dated April 4, 2008, found that her performance had declined and was “Unsatisfactory.” Ms. Herrin found Ms. Dupper “Unsatisfactory” in Management of Student conduct, Instruction, Organization and Development, Knowledge of Subject Matter, and Evaluation of Instructional Needs. Ms. Dupper’s performance in Professional Responsibilities also declined due to her failure to complete Individual Education Plans on time, incomplete and inaccurate progress notes, and her failure to follow suggestions for improvement. The 90-Day Probation Period. As a result of her continuing decline in performance, Ms. Dupper was informed on April 9, 2008, that she was being placed on a 90-day probation period pursuant to Section 1012.34, Florida Statutes. She was informed that her deficiencies included the inability to manage student conduct, lack of lesson planning, inadequate knowledge of subject matter, lack of student progress evaluation, and inadequate professional responsibility. Ms. Dupper was given suggestions for how to improve her deficiencies over the summer break, suggestions which Ms. Dupper did not follow. While on probation, Ms. Dupper was also offered an opportunity to transfer to another school, an offer which was not accepted. On June 6, 2008, at the request of Ms. Dupper’s union representative, a second annual evaluation was performed by Ms. Herrin. While Ms. Herrin found some improvement, she found that, overall, Ms. Dupper’s performance was “Unsatisfactory.” Ms. Dupper was on probation during the 2007-2008 school year a total of 62 days, excluding holidays and “professional days.” During the summer months between the 2007-2008 and 2008-2009 school years, Ms. Dupper, who was not teaching, failed to follow any of Ms. Herrin’s suggestions for personal improvement opportunities. The first day of school for the 2008-2009 school year and the commencement of the 90-day probation period was August 11, 2008. Ms. Herring formally observed Ms. Dupper during the third week of September 2008, and on October 2, 2008. Assistant Principal Willis observed Ms. Dupper on October 8, 2008. Ms. Dupper’s performance and use of Galileo continued to be unsatisfactory, despite continuing efforts of the administration staff to assist her, as more particularly and accurately described in paragraphs 30 through and including 35 of Petitioner’s Proposed Recommended Order. Additionally, Ms. Dupper continued to fail to prevent her very young students from leaving the classroom without her knowledge. Excluding non-school days, Ms. Dupper was given more than 120 days from the commencement of her probation period until her probation period was considered ended in October 2008. By the middle of October 2008, Ms. Herrin concluded that Ms. Dupper had not evidenced satisfactory improvement in her teaching skills. Ms. Herrin’s conclusions concerning Ms. Dupper’s unsatisfactory performance as a teacher, which were not contradicted, are credited. The Decision to Terminate Ms. Dupper’s Employment By letter dated October 30, 2008, Ms. Herrin recommended to Randy Acevedo, Superintendent of the Monroe County School District, that Mr. Acevedo review documentation concerning Ms. Dupper’s 90-day probation period and make a recommendation pursuant to Section 1012.33, Florida Statutes, concerning her continued employment. Ms. Herrin provided Mr. Acevedo with the following information for his review: Attached please find a copy of the professional development plan and this year’s observations conducted by Assistant Principal, Grace Willis and me. The remaining documentation for the 2007 and 2008 school years have been submitted to personnel. I have also attached the follow up documentation, the review of the 90-Day plan and the observations that outline the deficiencies that still remain. This teacher’s performance remains unsatisfactory. Petitioner’s Exhibit 7. Missing from the information provided for Mr. Acevedo’s consideration was any information concerning student performance assessed annually by state or local assessment. By letter dated November 14, 2008, Mr. Acevedo informed Ms. Dupper that he was going to recommend to the School Board at its December 16, 2008, meeting that her employment as a teacher be terminated. By letter dated November 18, 2008, Ms. Dupper requested an administrative hearing pursuant to Section 120.57, Florida Statutes, to challenge her anticipated termination of employment. The School Board accepted the Superintendent’s recommendation at its December 16, 2008, meeting, suspending Ms. Dupper without pay, pending a final determination of whether her employment should be terminated. Student Performance Assessment. The Florida legislature has specified in Section 1008.22, Florida Statutes, a “Student assessment program for public schools.” This assessment program is to be considered in evaluating student performance as part of a teacher’s evaluation. The assessment program, however, does not apply to Pre-K students. “FLICKRS” is a state assessment tool intended for use in evaluating Kindergarten students. FLICKRS allows schools to evaluate whether a Kindergarten student is actually ready for Kindergarten-level work. FLICKRS is not utilized by the School Board to evaluate the progress of Pre-K students. The School Board has not developed any means of annually assessing the performance of Pre-K students. As a consequence, the decision to terminate Ms. Dupper’s employment by the School Board was not based upon any annual assessment of her students’ performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order: (a) dismissing the charges of the Administrative Complaint; (b) providing that Ms. Dupper be immediately reinstated to the position from which she was terminated; and (c) awarding Ms. Dupper back salary, plus benefits, to the extent benefits accrued during her suspension, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of July, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2009. COPIES FURNISHED: Scott Clinton Black, Esquire Vernis and Bowling of the Florida Keys, P.A. 81990 Overseas Highway, Third Floor Islamorada, Florida 33036 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Randy Acevedo, Superintendent Monroe County School Board 241 Trumbo Road Key West, Florida 33040-6684 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether there is just cause for Palm Beach County School Board to suspend Deborah Stark for 10 days without pay based upon the allegations made in its Administrative Complaint filed on November 8, 2017.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the Palm Beach County Public School System. Art. IX, Fla. Const.; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Stark was hired by the School Board in 2005. She is employed pursuant to a professional services contract with Petitioner. At all relevant times to this case, Stark was a teacher at Diamond View. She taught second grade. One of Stark's teaching responsibilities was to provide student information to the School Based Team ("SBT") such as conference/staffing notes,1 to assist the SBT in determining how best to support students who were having challenges or difficulties with reading. During Stark's last several school years with the School Board, Stark engaged in a pattern of misconduct. On June 1, 2015, Stark received, by hand delivery, her first written reprimand. She was disciplined for falsifying three memos by inappropriately using the School Board's letterhead and creating misleading and false documents under co-workers' names without permission. One problem area Respondent had was that she failed to keep her classroom organized and neat. Because of the disorganized book area and unkempt cluttered classroom, Respondent's classroom failed to be an environment conducive to learning and impacted the students' morale negatively. On September 30, 2015, Principal Seal, by memorandum, addressed two of Stark's work deficiencies. Seal pointed out to Stark that her classroom management did not correspond with the School Wide Positive Behavior Support Plan and that Stark's 2014-2015 Reading Running Records ("RRR")2 were not accurately and properly administered. Seal instructed Stark to sign up for a classroom management course through eLearning within a week and notify Seal of the enrollment. Seal even specifically suggested a two- day course that started on October 6, 2015, at the Pew Center. Seal also outlined Stark's RRR inaccuracies and deficiencies in the September memo, which included Stark's failure to provide an accurate report on September 25th for a student during a scheduled SBT meeting, improper use of school materials as a benchmark, and writing in the teacher materials with student's information inappropriately. As a result of Stark's RRR shortcomings, Seal directed Stark to sign up for the next RRR training available on either October 13, 14, 23, or 24, 2015, through eLearning and instructed Stark to verify the RRR training enrollment. The memo ended with the following: "Failure to comply with these directives will be considered insubordination and may result [in] disciplinary action to include up to suspension or termination of employment." On November 10, 2015, Seal specifically directed Stark to clean up her classroom and update her students' progress on the class bulletin board. Stark was provided a deadline of on or before November 24, 2015, to correct the performance deficiencies. Stark did not do so. In December 2015, Stark still had student work posted from August and her classroom was not up to date. On December 18, 2015, a pre-disciplinary meeting was held. In that meeting, Stark informed Seal that she went to training, but admitted that she did not provide the required documentation of attendance. Stark's performance with RRR had not improved. By February 2016, Respondent had failed to comply with Seal's directives of November 10, 2015. Stark's classroom was unacceptable and had not been cleaned up, updated, organized as directed. The closet was cluttered from the floor to the ceiling with boxes, papers, and books. Additionally, Stark's student work bulletin board still was not changed and up to date. On February 12, 2016, Seal met with Stark to address the issues and gave Stark a verbal reprimand with written notation. The verbal reprimand with written notation memo stated that Respondent was insubordinate for fail[ing] to comply with "directives given to her in the memorandums dated September 30, 2015, and November 10, 2015." On May 24, 2016, a pre-determination meeting was held with Stark and she acknowledged that she had fallen behind in the RRR and math/reading assessments but planned to catch up by the end of the year. On June 2, 2016, Seal held another disciplinary conference with Stark. Seal provided Stark a written reprimand by memo detailing that Stark exhibited: poor judgement, lack of follow up, inappropriate supervision of students, excessive absence without pay, failure to properly and accurately administer and record Reading Running Records as well as Math and Reading assessments, during the school year 2015/2016 with fidelity and insubordination. Seal also instructed Stark in the memo: Effective immediately, you are directed to provide the appropriate level of supervision to your students, follow your academic schedule, meet deadlines with respect to inputting reading and math date into EDW, accurately complete Running Reading Records, cease from taking unpaid time and follow all School Board Policies and State Statutes. Finally, pursuant to the CTA contract, I am directing you to provide a doctor's note for any absences going forward. This requirement will be in effect until December 22, 2016. Respondent failed to follow the leave directive of the written reprimand of June 2, 2016. Stark's duty day started at 7:50 a.m. On October 14, 2016, Stark notified Diamond View at 8:26 a.m. that she would not report to work because she had a ride to an appointment. On November 29, 2016, Stark notified the school at 7:40 a.m. by stating, "I have a meeting boo," as she took the full day off. On December 16, 2016, she notified the school at 6:24 a.m. that her husband requested a shopping day and family activities for the day. On February 10, 2017, Stark notified the school at 7:38 a.m., "I am going to a friend's house today to help them." On March 2, 2017, she notified the school at 7:14 a.m. that "I am finalizing a college class today." On March 7, 2017, Stark notified the school at 6:18 a.m. that Nationals verses Boston were at the new park and she would not be in to work. On April 5, 2017, Stark notified the school at 7:34 a.m. that she had a meeting and missed half the school day. Stark's absences of September 21, September 23, October 14, November 29, and December 16, 2016, were unauthorized leave and her leave of March 2, March 7, April 5, and February 10, 2017, were days without pay. Stark's excessive absenteeism disrupted the learning environment for her students and caused Respondent to miss out on valuable School Board resources she needed to perform her job duties and correct her work performance deficiencies. By missing work, Stark was neither able to obtain the needed available professional development nor obtain support from the Literacy Staff Developer. Stark's ineptness continued throughout the 2016-2017 school year. Stark failed to provide requested student information needed to assist in creating report cards for several former students, which adversely impacted the school and the students because, among other things, the school was not able to provide the students' new teachers with accurate data for placement. Stark was offered coaching services to improve her work performance through Peer Assistance Review ("PAR"). Stark failed to show up and meet with the trainers assigned to provide her support on January 20, February 1, and March 7, 2017. Stark failed to submit the required SBT documentation for five students timely. Stark's duties included meeting with the parents of each student to communicate the students' academic concerns. Stark did not meet with the parents. Instead, Stark submitted five untimely falsified student records indicating parent meetings that did not take place. She also forged translator Torres-Vega signature like she was present at the meetings, when Torres-Vega had not participated. On or about April 24, 2017, an investigation report was completed detailing Stark's misconduct for the 2016-2017 school year. The investigative summary concluded Stark failed to comply with numerous directives given by the principal and vice principal. Stark failed to complete and submit SBT documentation for five students who could have benefited from additional supportive services. Respondent falsified student records indicating she contacted and conferenced with the parents for each student. She also falsified that a translator had participated in the parent conferences. At the same time, Stark sent last minute notification emails to the principal as to why she would not be reporting to work, failed to notify Seal in a timely manner when she would not be reporting to work, and did not prepare substitute lesson plans. Stark's unexcused absences totaled approximately 40 hours without pay within a five month period and did not adhere to the 24 hour advanced notice requirement of the Collective Bargaining Agreement. Respondent's absences from work also caused her to miss valuable School Board training and support. Ultimate Findings of Fact Stark failed to fulfill the responsibilities of a teacher by not preparing and submitting the documents to the SBT so that the students could qualify for the support and services after multiple follow-ups and reminders by her supervisors. Stark's actions of falsifying the five students' records with Torres-Vega's signature and indicating that she met with the parents when she did not was ethical misconduct, failure to exercise best professional judgment, failure to provide for accurate or timely record keeping, and falsifying records. Stark misused her time and attendance when she had exhausted her paid time, but continued to use leave without pay when her work was not up to date and after she had been reprimanded and warned regarding absences by Seal. Stark's explanation of her absences failed to fall in the category for extenuating circumstances and her absences disrupted the learning environment. Stark was insubordinate and also failed to follow procedures, policies, and directives of the Diamond View principal and vice principal. Stark never cleaned up her classroom and failed to protect the learning environment. She also did not update her RRRs as instructed by Seal. On February 1, 2017, Vice Principal Diaz had also instructed Stark to always follow and adhere to an academic schedule with the students in order to provide structured learning. Instead, Stark continued to constantly allow the students to walk around the classroom, draw and eat snacks, without an academic schedule. By letter dated September 19, 2017, Respondent was notified that the School Board was recommending she receive a 10 day suspension without pay because of her misconduct. On or about October 4, 2017, the School Board took action by voting to suspend Respondent for 10 days without pay. Petitioner ultimately filed charges against Stark by Administrative Complaint dated November 8, 2018, that alleged Stark violated the following School Board policies: Failure to Fulfil the Responsibilities of a Teacher pursuant to School Board Policy 1.013(4), Responsibilities of School District Personnel and Staff; School Board Policy 2.34, Records and Reports; Collective Bargaining Agreement with CTA, Article II, Section U, Lesson Plans Failure to Protect the Learning Environment pursuant to School Board Policy 0.01(2)(3), Commitment to the Student, Principle I-(formally 0.01(2)(c); 6A- 10.081(2)(a)(1), F.A.C., Principles of Professional Conduct for the Education Profession Misuse of Time/Attendance pursuant to School Board Policies 3.80(2)(c), Leave of Absence; Collective Bargaining Agreement with CTA, Article V, Leaves, Section B Ethical Misconduct pursuant to School Board Policy 3.02(4)(b), (4)(d), (4)(f), (4)(h), and (4)(j), Code of Ethics; School Board Policy 3.02(5)(c)(iii), Code of Ethics; 6A-10.081(1)(c) and (2)(c)(1), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Failure to Exercise Best Professional Judgment pursuant to School Board Policy 3.02(4)(a), Code of Ethics; 6A-10-081(1)(b), F.A.C., Principles of Professional Conduct for the Education Profession in Florida Insubordination: Failure to Follow Policy, Rules, Directive, or Statute pursuant to School Board Policy 3.10(6), Conditions of Employment with the District; School Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. Respondent contested the reasons for suspension.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order: Finding Deborah Stark in violation of all six violations in the Administrative Complaint; and Upholding Deborah Stark's 10-day suspension without pay for just cause. DONE AND ENTERED this 25th day of July, 2018, 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 25th day of July, 2018.
