The Issue The issue presented is whether Respondent's termination of employment by the School Board of Miami-Dade County, Florida, was proper.
Findings Of Fact Respondent was employed as a teacher at Charles R. Drew Middle School, pursuant to an annual contract and holds Florida Educators Certificate Number 188727. Respondent holds a bachelor of science degree from Florida Atlantic University. She was employed by Petitioner in 1997 and has worked in the teaching profession for approximately 30 years. Prior to 1997, Respondent was a substitute teacher in Broward County, Florida, and in other states. During the 1999- 2000 school year, Respondent taught eighth grade science. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System ("TADS"). TADS was approved by the Florida Department of Education and is incorporated into the labor contract between the School Board and UTD. The identical TADS evaluations are used for all grade levels, subject areas, and teachers, whether new or veterans. TADS objectively measures 68 minimal behaviors necessary for teaching. At all times material hereto, TADS was used to evaluate Respondent's performance. TADS includes the following factors in its assessment criteria: preparation and planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. All teachers are contractually required to be informed of the criteria and procedures. At the beginning of each school year, school principals are required to review the assessment criteria with all faculty. TADS observations and ratings are performed by school principals and assistant principals who are trained and certified. The TADS training encompasses four days and includes the following components: strategies for pre-observation, classroom observation, decision-making with the Classroom Assessment Instrument, post-observation interview, prescription/probation of professionals, recommendations for improvement (prescriptive activities), assisting teachers in the design of instruction and improvement activities, practical activities such as video assessment, and actual classroom teacher assessment under the supervision of a trainer. The trained observer is responsible for recording any deficiencies identified during the observation period and providing a prescription plan for performance improvement. Within five work days, a post-observation conference is held with the teacher to discuss the prescription. The teacher has the right to provide a written response, either in the space provided in column 3 of the "Prescription for Performance Improvement" or by separate document that becomes part of the teacher's file. The teacher is required to comply with the activities provided in the prescription plan, which are usually obtained from the "Prescription Manual," and to meet the deadlines set forth in the column designated "Timeline" in the prescription performance improvement plan. As a result of the statutory amendments to Section 231.29, Florida Statutes, the School Board and UTD executed a Memorandum of Understanding on December 4, 1997, for the purpose of amending the TADS procedures to comply with the new statutory requirements. Under the amended procedures, a "conference for the record" initiates a 90 calendar-day performance probation period. Each observation is independent, and there must be periodic observations during the performance probation period in which the employee is apprised of his or her progress and is provided assistance through prescription plans. After the performance probation period is concluded, a "confirmatory observation" occurs without a prescription plan. On November 8, 1999, Respondent was formally observed by Assistant Principal Paulette Covin during science class. Respondent received an unsatisfactory rating in Category III, Classroom Management; Category IV; Techniques of Instruction; and Category V, Teacher-Student Relationships. Respondent was rated unsatisfactory in classroom management because she did not effectively use verbal or non- verbal techniques to redirect off-task learners. Several students continuously misbehaved and violated classroom rules. Four students were engaged in drawing during the lesson. One student slept throughout the entire observation which lasted over one hour. Six students talked throughout the observation period. Several students left their seats without permission and walked around the classroom during the observation period. Respondent did not use techniques effectively to maintain the attention of off-task learners. Clear expectations of student behavior and a systematic approach to proper classroom discipline were not evident. Respondent blew a whistle in an attempt to redirect off-task behavior, but there was no connection between the whistle-blowing and the expected behavior. The students did not react at the use of the whistle. Classroom rules were referred to; however, disruptive students were not dealt with quickly and appropriately. Respondent was rated unsatisfactory in techniques of instruction because Respondent failed to provide background information explaining why the topic of waves was being discussed. Respondent asked students if they remembered what they had learned about waves and electromagnetic spectrum. A student responded, "You did not teach us that." Moreover, lesson components were not properly sequenced. Without any segue or introduction from one activity to another, Respondent told the students to engage in jump-in reading and later, buddy reading. Respondent did not provide students with examples of demonstrations for the lesson she was teaching. Respondent did not provide students with feedback. Respondent was rated unsatisfactory in teacher-student relationships because Respondent did not promote a positive interpersonal environment in her classroom. She did not encourage her students who had difficulty responding. She demonstrated a lack of empathy and understanding for students who responded poorly during the observation, and did not solicit involvement from students who appeared reluctant to participate. She failed to take corrective action when one student gave a response and another student yelled out, "Dummy that's not right." During the post-observation conference for the record held on November 15, 1999, Respondent was advised that her performance was unacceptable, and effective immediately, was being placed on a 90 calendar-day performance probation period. She was informed that, at the end of her probation period, it was her responsibility to demonstrate that she had corrected the identified deficiencies. On November 17, 1999, Respondent received a prescription for performance improvement. Assistant Principal Covin made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The plan included observing a lesson taught by a fellow teacher and submitting a summary of the verbal and non- verbal discipline techniques used by that teacher to redirect off-task learners. Respondent was directed to create a classroom management plan for implementing techniques to redirect off-task learners, chart implementation for one week, and then discuss the results with Assistant Principal Covin. In addition, Respondent was directed to review reading strategies learned during in-service training sessions and submit a paper describing ways in which Respondent could provide instruction accommodations for more than one learning style. Additional resources, including administrators and fellow teachers, were also made available to Respondent. Respondent submitted her completed prescription activities before the December 3, 1999, deadline. On December 13, 1999, Respondent was formally observed in her science class by Assistant Principal Andy Granados as a subsequent evaluation to apprise Respondent of her progress. Respondent was found unsatisfactory in Category I, Preparation and Planning; Category III; Classroom Management; and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in preparation and planning because she had failed to develop written lesson plans, as required. Instead, Respondent advised Assistant Principal Granados that "the lesson plans were in her head." Respondent was rated unsatisfactory in classroom management because she was unaware that several students were engaged in off-task behavior. Three students left their seats without permission and went to other students' desks to talk casually. One student sat in his chair but did not attempt to complete any work. Seven students held private conversations and Respondent made no attempt to redirect them. Throughout the observation period, students walked aimlessly, sharpened pencils, visited with other students, and disturbed the class. Respondent failed to address their behavior. Although Respondent blew a whistle, there was no connection between the whistle blowing and any expected behavior. Respondent's use of verbal and non-verbal techniques to redirect the off-task behavior was completely ineffective. Respondent was rated unsatisfactory in techniques of instruction because she failed to provide any background for the lesson at hand. The lesson began without introduction and the activities in the class were unrelated. Respondent distributed two worksheets. The first worksheet involved an exercise comparing energy and the second was an isolated word game. She did not provide the students with any explanation about either sheet. Students repeatedly asked, "Why are we doing this?" Assistant Principal Granados held a post-observation conference with Respondent on January 10, 2000, to discuss his findings. Although the observation took place on Monday, December 13, 1999, Respondent, admittedly, was absent on December 14 and 15, 1999, and again on January 3-7, 2000. Furthermore, the holiday break extended from December 18, 1999, to January 2, 2000. Notwithstanding Respondent's testimony that she was present on two workdays, December 16 an 17, between the date of the observation and the post-observation conference held January 10, 2000, Petitioner complied with the five-work day time requirement for the post-observation conference. During their post-observation conference, Assistant Principal Granados made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The directions included writing and submitting daily lesson plans containing objectives, activities, procedures, assessments, and homework. Respondent was directed to observe a fellow teacher and identify instances where non-verbal techniques were used to maintain the attention of the students. She was also directed to prepare a plan for student behavior with rewards and consequences, to read specific pages for the TADS Prescription Manual, and to complete certain activities in that manual. Additionally, Respondent was directed to create a written outline with an introduction to each lesson indicating the relationship between the written instructional objectives, and the planned activities. The written outline was required to be attached to Respondent's lesson plans. Respondent's prescription plan activities were due on January 28, 2000. Respondent requested and received an extension of time to complete the activities until January 31, 2000, and completed the assigned activities on time. On February 8, 2000, Respondent was formally observed again in her science class by Assistant Principal Edward Bethel. Respondent was rated unsatisfactory in Category III, Classroom Management, and Category IV, Techniques of Instruction. Respondent was rated unsatisfactory in classroom management because there was no clear expectations for acceptable behavior. Students were engaged in off-task behavior. Four students left their seats without permission, while six students chewed gum and talked throughout the lesson. Respondent blew a whistle but the students continued to talk. Students who interacted inappropriately or interfered with the work of others were not disciplined appropriately. Two students fought over a stool, while a male student tried to remove a book from a female student. Respondent did not intervene. Respondent was rated unsatisfactory in techniques of instruction because there was no background given for the lesson presented and lesson components were not properly sequenced. Respondent listed six unrelated activities on the board. The students were confused about the unrelated assignments and the relationship between the assignments and what they had learned in the previous lesson. In the middle of the lesson, Respondent interrupted the students and read to them about the life of Frederick Douglas. Respondent failed to explain the connection between the life of Frederick Douglas and the lesson objective of the day which involved an animal's environment influencing survival. During the post-observation conference on February 15, 2000, Assistant Principal Bethel made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance in the prescription plan for Respondent to correct her deficiencies. The assistance included observing a fellow teacher and identifying five verbal and five nonverbal techniques to maintain specific behaviors of learners. Respondent was instructed to submit to Assistant Principal Bethel techniques that could be used to develop clear expectations to deal with students appropriately. Respondent was instructed to list the name of each student who acted inappropriately, and to submit a written plan to Assistant Principal Bethel as to how Respondent would handle negative behavior in the classroom. In addition, Respondent was directed to read specific pages from the TADS Prescription Manual, and to complete certain activities in that manual. Respondent was directed to create a written outline with an introduction to each lesson indicating the instructional objectives, the planned activities, and a description of how those activities will assist the students in reaching the instructional objective. Respondent submitted her completed activities in a timely manner. On March 9, 2000, two days after Respondent's 90-day performance probation period ended, Principal Ronnie Hunter performed a confirmatory observation to determine if Respondent's deficiencies had been corrected. Principal Hunter formally observed the Respondent in her science class and rated her unsatisfactory in Category II, Knowledge of Subject Matter, Category III, Classroom Management; Category IV; Techniques of Instruction; and Category VI, Assessment Techniques. After the confirmatory observation, Respondent was notified that she had failed to correct her performance deficiencies. Thereafter, on March 9, 2000, Principal Hunter forwarded to the Superintendent of Schools his recommendation that Respondent's employment be terminated. By letter dated March 10, 2000, the Superintendent notified Respondent that he was recommending to the School Board that her employment contract be terminated because she failed to correct performance deficiencies during her 90-calendar-day performance probation period. The assistance provided to Respondent through her prescriptions was substantial and appropriate to remedy her cited deficiencies. Although she claims that in-service training opportunities to help correct the noted performance deficiencies were not provided, she was directed to and observed several fellow colleagues engaged in teaching. Dr. O'Donnell, a 31-year veteran with the school system and an expert in TADS and teacher assessment, specifically testified that in-service training is not limited to formal education or workshops, but includes observation of fellow teachers. Although the School Board provided sufficient and meaningful in-service training opportunities to Respondent, she failed to show improvement. Respondent further claims that the School Board failed to meet TADS requirements after she was placed on a 90 calendar- day performance probation in October 1999, following the initial and rescinded observation conducted by Principal Hunter on October 12, 1999. Respondent claims that after she was initially placed on probation in October, Principal Hunter failed to notify her that she was being removed from probationary status due to a procedural error. Principal Hunter testified he rescinded the October 12, observation and verbally told Respondent that he was removing her from the 90-calendar- day performance probation because he did not get a required signature on the post-observation report. Respondent on the other hand, claims she did not receive notification and, as a result, believed the observation conducted by Paulette Covin on November 8, 1999, and the subsequent observations conducted on December 13, 1999, and February 8, 2000, were observations within the 90 calendar-day probation period. Respondent's claim that she never received notice that she was no longer on probation following the October 1999 observation is disingenuous. Notwithstanding Principal Hunter's credible testimony that he verbally informed her that she was no longer on probation, Respondent was clearly placed on notice that she was on probation beginning November 17, 1999. Specifically, on November 15, 1999, a conference-for-the-record was held with Respondent following her unsatisfactory observation held on November 8, 1999, during which Respondent received a written prescription and was informed in writing that, as a result of that unsatisfactory observation, she was being placed on the 90-calendar-day performance probation period. Moreover, on November 17, Respondent signed the summary of the conference-for-the-record which clearly and unambiguously stated, "You were advised of the availability of personnel to assist you during the 90 calendar-day Performance Probation, which commences upon the date that you receive the written prescription." In addition, the School Board committed no statutory violation of any TADS procedures by rescinding the October 12 unacceptable observation. In fact, under TADS the School Board could not rely on the October 12 unacceptable observation to dismiss Respondent because the post-observation report lacked a required signature. The School Board correctly rescinded the October 12 unacceptable observation. The TADS' requirements and procedures were properly executed regarding the formal observations of Respondent and the evaluations of her teaching performance. Petitioner complied with all of the statutory time frames. Respondent also failed to demonstrate that Principal Hunter created a hostile environment toward Caucasian female teachers that resulted in the termination of Respondent's employment. There was no reliable evidence that Principal Hunter discriminated against Respondent at any time including his formal observations of Respondent pursuant to TADS. While Principal Hunter performed two formal observations noting Respondent's deficiencies including the rescinded observation on October 12, 1999, and the confirmatory on March 9, 2000, three different assistant principals also objectively evaluated and rated her unsatisfactory prior to Principal Hunter's confirmatory observation finding Respondent's performance unacceptable. Moreover, Principal Hunter interviewed and hired Respondent as a teacher in 1997. Finally, although the School Board's contract with UTD provides for a joint labor/management committee called the "TADS Monitoring Committee" to resolve evaluation and procedure disputes, Respondent never objected to the criteria, procedures, or assessments of the committee. In sum, Respondent failed to demonstrate that TADS procedures were not followed, or establish that she was harassed or discriminated against by Principal Hunter. On the other hand, Petitioner presented competent substantial evidence that Respondent consistently performed at an unsatisfactory level and failed to correct her deficiencies during the probationary period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order terminating Respondent's employment and denying Respondent's claim for back pay. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001. COPIES FURNISHED: Valerie Kiffin Lewis, Esquire Valerie Kiffin Lewis, P.A. 4801 South University Drive, Suite 102 The Atrium Centre Fort Lauderdale, Florida 33328 Timothy A. Pease, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether cause exists to terminate the Respondent's employment by the Pinellas County School Board based on the allegations set forth in the Superintendent’s letter dated May 6, 1997.
Findings Of Fact Kay Kennedy (Respondent) has been employed as a teacher by the Pinellas County School Board (Board) since October 3, 1977, under a continuing contract of employment pursuant to Section 321.36(4)(c), Florida Statutes. Since 1990, the Respondent has taught at Safety Harbor Middle School. By all credible accounts, the Respondent has been an effective and capable teacher throughout her career. The Test Review The Pinellas County School District administers a Comprehensive Test of Basic Skills (CTBS) test to middle school students. The CTBS test measures the skill level of individual students within their grade levels and is used to compare the District’s students to similiar students in other Florida school districts and in other states. The compiled math and language arts scores of each District school are published in the local newspaper to permit local school-by-school comparison. Individual student scores are not released. Teachers are encouraged by school officials to prepare students for the examination. The District provides review materials in math and language arts to each middle school. Teachers in each school review the material with students in the days immediately prior to administration of the test. Reviews may take as much as a full week of class time to complete. Teachers in subject areas other than math and language arts also provide subject matter review to students although the District provides no review materials for those review sessions. The Respondent has provided a general social studies review during the seven-year period she was employed as a geography teacher at Safety Harbor Middle School. Other teachers in non- math and non-language subject areas offer their own reviews. During the review period, the Respondent initiated discussions with her classes about general social studies topics. Because the District provides no materials, the Respondent was left to determine the topics for her review. In the 1996-97 school year, the Respondent taught five geography classes. She used the first period time as a planning period and taught her classes beginning in the second period. Teachers who had first period classes administered the 1997 CTBS test. Because the Respondent did not have a first period class, she was not involved in the administration of the 1997 CTBS test. After the test was completed, some of the Respondent’s students believed that in her review, the Respondent had given them the answers to the social studies section of the CTBS test. The students relayed their belief to parents. One student’s father, a principal at another Pinellas County School, was already concerned with the Respondent and had complained to her superiors about her teaching. He immediately contacted the Safety Harbor Middle School principal. There is no evidence that the Respondent’s teaching fails to meet minimum standards. To the contrary, the Respondent’s teaching evaluations appear to be completely acceptable. Shortly thereafter, the Safety Harbor principal also heard from another parent, and from a teacher who overheard students discussing the matter. The Safety Harbor principal contacted district officials and initiated an inquiry into the matter. Based upon the allegations, representatives of the school and the District interviewed the children, and came to the conclusion that the Respondent had provided answers to specific questions contained in the social studies section of the CTBS test. The CTBS test is kept under secure and locked conditions. Teachers receive test materials immediately prior to administration of the test. The materials are bar-coded and individually scanned to assure that all materials distributed are returned. Although the evidence is unclear as to how many versions of the CTBS test exist, multiple versions of the exam exist. It is reasonable to assume that the District would annually rotate versions of the test to prevent students from sharing test content with students who will be tested the next year. The Respondent administered the CTBS test during the 1994-95 school year. There is no evidence that she made or kept a copy of the test. There is no evidence that she made or kept any personal notes as to what was on the test. There is no evidence that the Respondent had access to the 1997 CTBS test. There is no evidence that the 1997 exam was the same test administered by the Respondent in 1994. There is no evidence that the Respondent had knowledge regarding the questions contained in the social studies section of the CTBS test. There is no evidence that the Respondent knew which version of the exam would be administered in the 1997 school year. There is no evidence that there is any benefit whatsoever to a teacher who provides test answers to a student. The results of the CTBS tests are not used in teacher performance evaluations, in matters related to salary, or in any other employment issues. There is no evidence that the Respondent’s students, having supposedly been told the answers to the social studies section of the CTBS test, scored higher than other students in the school who took the same exam and answered the same questions. The Respondent’s students were re-tested using another version of the CTBS social studies test after the allegations of improper test preparation were raised. There is no evidence that the Respondent’s students scored higher the first time they were tested than they did when they were re- tested. At the hearing, students acknowledged discussing the matter. At the time the initial accusations were made, some students discussed using the allegations as grounds to have the Respondent’s employment terminated for apparently personal reasons. Again, there is no evidence that the Respondent had access to the 1997 CTBS test, knew which version of the CTBS test would be administered, or had any personal gain to realize from providing answers to students. Absent any supporting evidence, the testimony of the students in this case is insufficient to establish that the Respondent provided specific answers to the social studies portion of the 1997 CTBS exam to her students. Assistance During the Exam At the time of the 1997 CTBS exam, R. M. was a student at Safety Harbor Middle School. He had not been in the school for very long, was not proficient at speaking English, and had never before taken an exam like the CTBS test. The Respondent was present during the time R. M. was taking the math portion of the CTBS test to momentarily relieve the teacher responsible for administration of the test. The Respondent saw R. M. filling in boxes on his test answer sheet and believed him to be doing so in a random manner known as “Christmas-treeing” the test. A student who does not know test answers may choose to randomly fill in the answer sheet in hopes that at least some of the guesses will be correct. The Respondent approached R. M. and advised him to work the problems instead of guessing. She worked a problem similar to those on the test to demonstrate how to perform the task. At the hearing, R. M.’s testimony regarding the incident was inconsistent. It is insufficient to establish that the Respondent provided answers to the math questions actually appearing on the test. Although the evidence fails to establish that the Respondent provided test answers to R. M., the provision of test assistance to R. M. during the examination was inappropriate. Working a demonstration problem for a student taking a standardized examination is improper, and is unfair to students who do not receive such assistance. At the hearing, the Respondent acknowledged that she should not have assisted R. M. with the exam. Prior Reprimands The May 6, 1997, letter states that the Respondent has “received four reprimands for leaving your classroom unsupervised, lack of judgment, kicking a student and misrepresenting the truth.” The evidence establishes that in 1990, the Board prosecuted the Respondent for such allegations and attempted to impose an unpaid three-day suspension. After an administrative hearing was held, the charges were dismissed. The prior allegations provide no basis for any current disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a Final Order reprimanding Kay Kennedy for providing assistance to a student during an examination and dismissing all remaining allegations set forth in the Superintendent's letter of May 6, 1997. DONE AND ENTERED this 23rd day of April, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1998. COPIES FURNISHED: C. Wesley Bridges II, Esquire Pinellas County School Board 301 4th Street Southwest Post Office Box 2942 Largo, Florida 33779 Mark Herdman, Esquire Herdman & Sakellarides, P. A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street Southwest Largo, Florida 33770-2942 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether respondent, a junior high school teacher, should be dismissed from employment pursuant to Section 231.36(4), Florida Statutes (1979), on grounds of incompetency and inefficiency--specifically, his alleged failure to use proper testing and grading techniques and procedures.
Findings Of Fact The Respondent Respondent, a classroom teacher under continuing contract, has worked for the Lake County School Board for 24 years; he has taught social studies at Leesburg Junior High School for the last eight years. He is certified to teach social studies to grades 1 through 12. (Testimony of respondent; P-6.) II. June, 1980: Identification of Respondent's Grading and Testing Deficiencies In June, 1980 -- at the conclusion of the 1979-80 school year -- P. Jeffrey Ladd, assistant principal at Leesburg Junior High School, received an inquiry concerning a report card completed by respondent. Upon investigation, Ladd discovered that respondent had failed to calculate a student's final grade pursuant to the School Board Grading Policy No. 7.07 3(d) 3/ . At Ladd's request, respondent returned to school and recomputed the grades awarded to his other students; it was then discovered respondent had similarly miscalculated the grades for all 117 students assigned to him during the school year. (Testimony of Polk; P-4, P-46, P-51.) Ladd then reviewed the examinations which respondent had given and found: (1) one final exam contained a 26-point "gift" to students; (2) generous 10-to-30 point grading curves had been used; (3) 20 out of 74 questions on an eightR-grade exam required simple "unscrambling" of words within the social studies context; (4) many pages on final exams had no marks indicating they had been graded, and (5) the method used in calculating final grades was unclear. (P-51.) On June 10, 1980, Ladd expressed his concern to respondent concerning the miscalculation of final grades and the deficiencies he had found in the final examinations. Respondent's attitude was cooperative; he did not disagree that the problems existed or that they required correcting. Ladd followed up the conference by sending respondent, by registered mail, a written summary of the matters discussed; respondent refused to accept the letter. (Testimony of respondent; P-16, P-51.) When Joseph R. Polk, principal of Leesburg Junior High School, returned from summer vacation, Ladd informed him of respondent's grading miscalculations and respondent's refusal of the registered letter. Polk then met with respondent on July 24, 1980, and went over the grading and testing problems identified in Ladd's registered letter. Because these problems had a far reaching affect on students, Polk considered them to be serious deficiencies; he told respondent that such mistakes could not be tolerated, that a teacher with respondent's experience should not take them lightly, that other action, including dismissal, would have to be taken if the problems continued. (Tr. 19, 22.) 4/ Respondent acknowledged his grading deficiencies and stated that he intended to take care of the problem. (Testimony of Polk.) III. Respondent's Subsequent Performance First Nine-Week Period For the purpose of determining whether Respondent's grading and testing deficiencies had been corrected, Polk and Ladd reviewed the next examination given by respondent. Their review at the end of the first nine-week period in the 1980-81 school year indicated that students had done poorly on the test; there were three As, five Bs, eleven Cs, nine Ds, and ninety-one Fs. The test covered material not included in the lesson book; it contained open-ended subjective questions which could have been answered in a number of ways. Examples were: 2. The United States is a ( ) ( ) ( ) ( ). [Answer: (land)(of)(great)(re- sources).] 6. The ( )( ) is one of the most beautiful regions of our nation. [Answer: (Pacific)(Coast).] (P-18.) This examination was not an effective measure of the students' progress. On October 20, 1980, Polk and Ladd went over the examination with respondent, pointed out the deficiencies, and recommended that he take a course in tests and measurements to improve his ability to give examinations. The next day, Polk completed and delivered to respondent a teacher Pre-Assessment Form which identified the test deficiencies discussed at the conference and explicitly recommended corrective action: "Take a course in tests and measurements to improve your [respondent's] testing abilities." (P-18.) Respondent was given another nine weeks to show improvement, and warned that failure to correct the area of concern could lead to his dismissal or non-renewal. (Testimony of Polk; P-18, P-51.) Second Nine-Week Period During the next nine-week period, respondent asked Polk and Ladd to review his semester exams before they were administered; Polk agreed. On December 15, 1980, Polk and Ladd met with respondent and reviewed the proposed examinations. The exam questions had been taken directly from a teacher's manual which accompanied the course textbook; Polk and Ladd concluded that the questions were extremely difficult. When Polk asked respondent five of the questions, respondent was unable to give a correct answer. The test also covered material which may not have been taught to the students. Polk and Ladd suggested improvements to respondent; but there was insufficient time to revise the tests since they were to be given the next day. (Testimony of Polk; P-21, P-51.) Respondent taught five classes in U.S. History to eighth graders; students were grouped in these classes according to their ability levels. Ladd and Polk also questioned whether the tests prepared by respondent were adequate to test the abilities of the five different levels of students. (Testimony of Polk; P-51.) On December 17, 1980, respondent administered the tests which had been reviewed earlier by Polk and Ladd. Fifty-two percent of his students -- in all classes -- received a D or F on the exams. One class had been given the test, with answers, three days earlier; such action is unusual and not a sound educational practice. Polk met with respondent that afternoon, told him to stop providing students with examinations in advance, and asked for all his exams so that they could each be checked individually. In January, Polk and Ladd reviewed these examinations to see if respondent's grading problems had been corrected. They found little improvement. All of the exams in two of respondent's classes had been graded incorrectly. Some material on the exams had not been taught in class. On January 15, 1981, Polk wrote respondent a memorandum describing these testing deficiencies, concluding that the problems noted in October, 1980, had not been corrected, and making six specific recommendations for improvement. These recommendations required respondent observe testing procedures in other social studies classes; to improve his math skills 5/ , to cease providing students with exams in advance; and to take a course in testing and grading techniques, as previously requested in October, 1980. Polk also asked respondent to again submit his examinations for review during the next (third) nine-week grading period. Respondent was reminded that his course planning book should indicate that students have been taught the material included on a test. The memorandum cautioned that if respondent's testing problems were not corrected by the end of the third nine-week period (March 12, 1981) he might be dismissed or returned to annual contract. (Testimony of Polk; P-26, P-51.) Third Nine-Week Period During the next nine-week period, respondent did not comply with Polk's October, 1980, and January, 1981, requests to take a course on testing and measurement procedures. 6/ In March, respondent did ask Polk for help in establishing such a course at the local teacher's education center; although Polk suggested contacting the education center, respondent did not do so. A college course in testing and grading techniques was available at several schools in the Lake County area during the first quarter of 1980. Notice of the course offered by the University of Central Florida was posted in the junior high school's teachers' lounge. (Testimony of Polk; P-52.) In February and early March, 1981, respondent, as requested, submitted his examinations for prior review. Some improvement was noted by Ladd and Polk. The tests appeared to follow the respondent's planbook and, on their face, were generally acceptable. 7/ (Testimony of Polk; p-27, P-34.) However, the results of the nine-week final examinations showed that respondent had not corrected his deficiencies in grading examinations. Numerous computation errors were detected; 59 out of 121 papers were incorrectly graded. Questions that were incorrect were marked correct -- and vice versa. Also, there was an unusually large number of poor grades: 65 Fs, 18 Ds, 34 Cs, 2 Bs, and 1 A. Assuming that respondent adequately instructed his students, these grades indicate that the tests did not adequately measure what had been taught during the course. (Testimony of Polk; P-36.) Although Polk had suggested in his January memorandum to respondent that he take a course to improve his proficiency in math, respondent did not do so. Such courses were readily available at the Adult Education Center and Sumter Community College. (Testimony of Polk.) Respondent's Actions After Recommendation for Dismissal On March 17, 1981, Polk notified respondent that he would be recommended for dismissal based on incompetency and inefficiency as demonstrated by his failure to use proper testing and grading techniques. Polk concluded that despite repeated efforts to assist 8/ respondent, no meaningful improvement had been made. (Testimony of Polk; P-37.) Thereafter, during June, 1981, respondent took a course on testing and evaluation techniques at Bethune-Cookman College in Daytona Beach. (Testimony of respondent; R-1.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board of Lake County enter a final order dismissing respondent from his employment. DONE AND ORDERED this 11th day of September, 1981, in Tallahassee, Florida. R. L. CALEEN, 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 11th day of September, 1981.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as those facts stipulated to by the parties, the following facts are found: The petitioner has been employed with the Pinellas County school system since 1969. She is currently an instructor and department chairperson at Clearwater High School. In the 1984-85 school year, petitioner taught Introduction to Data Processing and COBOL Programming, Levels 2, 3 and 4, to sophomores, juniors and seniors. Along with twelve to fifteen other teachers at Clearwater High School, petitioner applied for the 1984-85 designation as Associate Master Teacher. The Master Teacher Program requires candidates to receive superior scores on both a subject area examination and a performance evaluation. Both components require scores at or above the seventy-fifth (75th) percentile on norms for candidates tested or evaluated. Petitioner received a score in the 86th percentile on her subject area examination. For the performance evaluation, each candidate must have two observations by approved observers who utilize an approved performance observation instrument known as the FPMS (Florida Performance Measurement System. Summative Observation Instrument. To become an approved observer, one must undergo a period of training involving approximately three days. The training programs entail extensive instruction in the research base of the FPMS, how to use the Summative Observation Instrument and in coding procedures. During the training session, the observers are given practice sessions with video taped lessons and then feedback on their coding accuracy. The observers are trained as data collectors and are not taught to score the observation instrument. This scoring function is performed at the University of South Florida's Teacher Evaluation and Assessment Center (TEAC). The three observers in this case had all successfully completed the training session and were approved observers for the State Master Teacher Program. The three persons who observed the petitioner had a part in observing 12 Master Teacher Program candidates for the 1984-85 school year. Of those 12 candidates, 30 percent passed the performance evaluation component. This was slightly higher than the state norm of a 25 percent passage rate. Petitioner's initial two performance observations were conducted on February 20 and 21, 1985, in her Introduction to Data Processing course which she had taught for five years. In preparation for her observations, petitioner created a detailed lesson plan which she believed contained the requirements necessary to receive a passing score on the FPMS. She was not personally trained to code or score the Summative Observation Instrument. Petitioner utilized the same lesson plan for both observations, though a different group of students were being taught on each day. Assistant Principal John Nicely, an approved observer, utilized the FPMS Summative Observation Instrument to conduct the petitioner's performance evaluation on February 20, 1985. This was the first or second evaluation he had conducted after receiving his training as an observer for the Master Teacher Program. Mr. Nicely felt that his training had been adequate and that she was competent to mark the positive and negative indicators required on the Summative Observation Instrument. He felt that he marked the instrument in accordance with what he had observed. His personal opinion of the class which he observed was that petitioner was well prepared, presented a very good lesson, and that student learning was taking place during that class. Bill Williamson, the then Principal of Clearwater High School, and an approved observer, conducted the performance evaluation of petitioner on February 21, 1985. He felt that he had received adequate and comprehensive training and felt confident in his ability to record the behaviors he observed on the Summative Observation Instrument. Mr. Williamson's personal opinion after observing petitioner's class on February 21, 1985, was that she had done a nice job and had given a very fine lesson. The observation instruments completed by Mr. Nicely and Mr. Williamson were sent to TEAC for scoring, and the average of the two scores was formed with the scores of approximately 20,000 candidates for the 1984-85 Master Teacher Program. As the result of the two initial evaluations, petitioner received a score of 18.92 percent on the performance component of the Master Teacher Program. Upon her request, petitioner's scores were hand verified, which did not alter the 18.92 percentile score. The rules governing the Master Teacher Program provide a procedure for candidates who are dissatisfied with their initial performance scores to request reevaluation by a third observer. Petitioner made such a request and was reevaluated by Assistant Principal Dorothy Cheatham on August 29, 1985. Ms. Cheatham was an approved observer of the FPMS, having attended the three-day training session, as well as a review session. Believing that her training was adequate, she felt confident to complete the Summative Observation Instrument. Ms. Cheatham had conducted four Master Teacher Program observations prior to observing petitioner in August. She felt that she had observed an effective lesson in petitioner's class. Following the reevaluation performed by Ms. Cheatham, the three observation scores were averaged and petitioner's revised score improved to the 32.44 percentile. Pursuant to Rule 6A-4.46(5)(b), Florida Administrative Code, a candidate's Principal may recommend to the Department of Education that the candidate receive up to ten additional evaluation points. Mr. Williamson recommended that petitioner receive all ten points. This recommendation was approved, resulting in a final percentile score on the performance evaluation component of 53.17, still below the required 75th percentile. Each of the three approved observers of petitioner's classroom performance were surprised and could not understand or explain how their completion of the observation forms could have resulted in such a low score for petitioner's performance evaluation. Each believed that they had correctly completed the Summative Observation Instrument, yet each felt that the low score did not accurately reflect the level of teaching they had observed. The three observers were trained to utilize the "intervening behavior" or "intervening episode" rule, which means that a teaching behavior that continues is recorded a second time only if there is an intervening behavior or episode. Petitioner's observers utilized this rule in evaluating her performance on February 20 and 21, and August 29, 1985. It does appear from the testimony that at least some of the petitioner's behaviors with regard to her use of audio visual equipment throughout her lesson may have been undercoded. However, there is insufficient evidence to establish how many such instances occurred or how their omission may have affected her overall score or ranking. The cover page of the Summative Observation Instrument contains a section entitled "Instruction Format/Frame Factors." Petitioner's three observers did not recall specific indepth instruction during the training sessions as to the proper manner of completing this portion of the form. They circled different methods of teaching for petitioner's observed lessons. Mr. Nicely indicated a combination of lecture, discussion, recitation and interaction. Mr. Williamson indicated a combination of all methods used in the classroom. Ms. Cheatham indicated a combination of lecture and independent study or work. While the form of instruction a teacher utilizes during a performance evaluation can result in a point differential in the norming of a candidate's score, the total effect is small. The score adjustment was not determined to be great enough to justify norming separate norm groups based upon instructional format. The FPMS was developed to be used for teachers of all levels and in all subjects, with two norm groups, elementary and post-elementary. It is a low inference observation instrument, designed to collect objective data and to be scored against a norm group. As opposed to a high inference or rating instrument, the FPMS does not require the observer to make a judgment or opinion about the teacher's performance At the time the data is collected and recorded, no scores are entered on the instrument. Indeed, observers are not taught to score the instrument; they are trained as data collectors. The evaluator's purpose is to code what the teacher does and not what the evaluator thinks of the teacher. The observer records data concerning the teacher's behavior in the classroom by simply describing the numbers of times they see a listed behavior. The data recorded is then compared with all other teachers who are being scored on the same instrument. With low inference instruments, the only judgment made is after the scoring or recording of data is completed. At that time, the norm table is determined and the teachers are placed in rank order. Low inference evaluations based upon structured observations produce more useful data than high inference or rating evaluations in relating teacher performance with student achievement. Indeed it has been determined that the use of high inference instruments in evaluating teacher performance bears little or no correlation with student behavior and student achievement. The Pinellas County School Board utilizes a high inference rating system to perform the annual evaluations for instructional personnel. The main purpose of this evaluation, while it contains some of the same items as the FPMS, is feedback and improvement of the teachers for employment purposes. Unlike the FPMS, whose purpose is to recognize superior ability, the Pinellas County evaluation system does not compare teachers when ratings are given. In contrast, Master Teacher Program candidates are compared to each other statewide to determine whose teaching performance is superior. For the 1984-85 school year, approximately 47 percent of the teachers at Clearwater High School received the highest rating of "exceeds expectations" in the instructional area. Another 49 percent received the next highest rating designation of "meets expectations." Petitioner's annual performance evaluations during her years of employment with the Pinellas County School Board have been consistently above average. For the 1984-85 school year, petitioner was evaluated by Dorothy Cheatham and received an overall rating of "exceeds expectations" in the area of instructional performance. A three-member team of outside evaluation experts reviewed the FPMS for compliance with the criteria specified in Rule 6A-4.46, Florida Administrative Code. While the team had some recommendations for improvement and suggested certain areas of caution in future use, it enthusiastically endorsed the use of the FPMS for the merit program. The team found the observer training program to be effective and impressive. Testing results have indicated a good distribution of awards among the various disciplines and instruction modes and indicate that the FPMS was appropriately normed.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioner's amended petition seeking the granting of the Associate Master Teacher Endorsement and the $3,000.00 merit incentive award be DENIED. Respectfully submitted and entered this 28th day of July, 1986, in Tallahassee, Florida. DIANE D. TREMOR 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 28th day of July, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0023 The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 1. The date of application is rejected as unsupported by any evidence. 7. Last sentence rejected as contrary to the greater weight of the evidence. 15. The words "gave the same lesson" rejected as unsupported by competent, substantial evidence. Rejected as unsupported by competent, substantial evidence, and that portion relating to Williamson's understanding of the coding rules is rejected as contrary to the evidence. Partially rejected in that it was not conclusively demonstrated that undercoding occurred. 20 and 21. Rejected as irrelevant and immaterial to the issues in dispute. 23 - 26. Rejected as unsupported by competent, substantial evidence. Respondents Rejected as immaterial to any issue in dispute. 22 and 26. Rejected as constituting a legal conclusion as opposed to a factual finding. 27. This proposed finding is supported by the evidence, but is not particularly relevant to any issue in dispute. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P. A. 911 East Park Avenue Post Office Box 1547 Tallahassee, Florida 32301 Barbara Staros Harmon Deputy General Counsel State Board of Education Knott Building Tallahassee, Florida 32301 Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner General Counsel Department of Education Knott Building Tallahassee, Florida 32301
The Issue The issue in this case is whether just cause exists for Petitioner to suspend Respondent without pay from her employment as a teacher for 30 work days.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material to this proceeding, Respondent was a teacher of emotionally/behaviorally disturbed ("E/BD") students at Jose de Diego Middle School, a middle school within the Miami-Dade County Public Schools. At all times material to this proceeding, Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background The incident giving rise to this proceeding occurred on or about January 12, 2012. On that day, three male students in Respondent's class engaged in play fighting and video-recorded their actions on cell phones and an MP-3 recording device. As a result, Mr. Fernandez, the principal of Jose de Diego Middle School, determined that Respondent did not follow established policies and procedures in stopping or attempting to stop the play fighting, and that her failure to do so endangered the safety of the students involved. Accordingly, he recommended that she be suspended from her employment for 30 work days without pay. On May 16, 2012, Petitioner suspended Respondent from her employment for 30 work days without pay. Incident Giving Rise to Charge The incident giving rise to this proceeding occurred during the last instructional block of the day, while the students were engaged in language arts and reading. There were a total of eight or nine students in Respondent's classroom, and they were divided into two groups, consisting of four or five students each, for reading exercises. They were situated in the back of the classroom where they had access to computer terminals. Respondent and a paraprofessional, Ms. Larkin, were also situated in the back of the classroom, working with the students. During this instructional time, Respondent received three separate calls on the classroom telephone from her department head asking about paperwork on one of Respondent's students. The classroom phone is located in the front of the classroom. Each of these calls took Respondent away from her teaching and supervision of the students. Ms. Larkin continued to supervise the groups, but then excused herself to use the restroom. This left the students at least momentarily unsupervised. At this time, three male students, instigated by one student, began to play fight. The persuasive evidence indicates that the students engaged in three separate incidents of play fighting over a period of time lasting several minutes. The other students in the class looked on and did not engage in play fighting. Respondent credibly testified that as soon as she saw what was happening, she immediately hung up the phone and went to the back of the classroom to stop the play fighting, yelling at the students to stop and threatening to write disciplinary referrals to the office; however, they ignored her. Her testimony was closely corroborated by that of D.M., one of the students engaged in the play fighting. D.M. credibly testified that Respondent repeatedly attempted to get the students to stop by yelling at them and threatening to write referrals, but they ignored her. They continued to play fight and recorded the play fighting on two cell phones and an MP-3 device with the stated intention of posting the videos on Facebook, YouTube, and Twitter. Once Respondent saw that the students would not stop, she stepped into the hall to see if a security monitor was on the first floor, where her classroom was located. Seeing none, she called George Coakley, the Dean of Students, to come to her classroom. An emergency button is located in each classroom. This button transmits a call to the main office, which is responsible for responding to the call. Respondent did not use the emergency button to call for assistance because, in her experience, such calls often are not answered. Respondent used the classroom phone to call Mr. Coakley's cell phone. Mr. Coakley had given her and other teachers his cell phone number to, among other things, be used in such situations. At the time of Respondent's call, Mr. Coakley was involved with another matter, and said he would be there as soon as he was finished with that matter. He and Respondent both estimated it took approximately five minutes for him to arrive at Respondent's classroom. At that time, the students disengaged and ran to sit down as he entered the classroom. Before Mr. Coakley's arrival, Respondent wrote referrals on all of the students involved in the play fighting. These referrals were turned over to the main office for disciplinary purposes. Mr. Coakley took the students involved in the play fighting from Respondent's classroom to the main office and turned them over to Principal Fernandez, who confiscated the phones and MP-3 device and ultimately suspended the students from school. The persuasive evidence establishes that there were three separate videos of three discrete episodes of play fighting taken on three separate recording devices.2/ In one of the videos, Respondent and Ms. Larkin are seen sitting at the desk in the front of the classroom while the play fighting is taking place in the back of the classroom.3/ It is undisputed that the videos depict only a portion of the entire incident. The persuasive evidence establishes that Respondent first made efforts, not captured on the videos, to get the students to stop play fighting. Those efforts consisted of going to the back of the room and yelling at the students to stop fighting, then threatening to write and writing disciplinary referrals. She took these actions before looking for a security monitor, then calling Mr. Coakley and awaiting his arrival. Based on the video, Principal Fernandez concluded that Respondent's efforts to stop the play fighting did not conform to the E/BD Crisis Plan Jose de Diego Middle School 2011/2012 ("Crisis Management Plan") protocol applicable to student fights. The Crisis Management Plan requires, in pertinent part, that the teacher immediately contact security via emergency call button, the school administrator, and nearby staff. Principal Fernandez determined that Respondent did not comply with this requirement because she did not use the emergency call button to summon school security to her classroom. However, the persuasive evidence establishes that Respondent did contact school administration——specifically, Mr. Coakley——as soon as she determined that she was unable to get the students to stop the play fighting. Respondent credibly testified that she contacted Mr. Coakley directly instead of using the call button specifically because, in her experience, school security often did not respond to the emergency call button. The Crisis Management Plan also requires the teacher to "separate and isolate" students involved. It does not specifically describe how this should or must be done. Respondent testified that she repeatedly attempted to get the students to stop play fighting by going to the back of the room where they were located, yelling at them to stop, and threatening to write referrals on them. Principal Fernandez testified that Respondent should have said "stop"——which Respondent did. He also testified that she should have "separated and isolated" the students but he did not articulate any specific means that Respondent should have employed short of physically intervening to break up the play fights——an action that arguably may itself have violated Petitioner's corporal punishment policies or may have resulted in Respondent herself being physically injured. Robin Morrison, an Instructional Supervisor with Petitioner's Division of Special Education, testified that Respondent could have used "proximity control" to separate the students, and that in her opinion, based on her viewing of the videos, Respondent did not do this and therefore did not respond appropriately in trying to break up the play fighting. However, as previously discussed, the videos do not depict the entire incident. Thus, Ms. Morrison's testimony is deemed unpersuasive. The persuasive evidence establishes that Respondent did go to the back of the room where the play fighting was occurring and attempted to get the students to stop. Only after it became apparent that they would not comply did she go to the front of the room, where she looked down the hallway to see if a security monitor was immediately available, then called Mr. Coakley on the classroom phone. Findings of Ultimate Fact Misconduct in Office Petitioner has charged Respondent with committing misconduct in office. Misconduct in office is defined in Florida Administrative Code Rule 6A-5.056(3)4/ as: violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. The Code of Ethics of the Education Profession in Florida, rule 6B-1.001, provides: The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of a democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of community, the educator strives to achieve and sustain the highest degree of ethical conduct. The Principles of Professional Conduct for the Education Profession in Florida, rule 6B-1.006, provides in pertinent part: The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law. Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * The greater weight of the evidence establishes that Respondent made reasonable efforts to protect the students in her classroom from conditions harmful to learning and to their mental and physical health and safety. As addressed above, the persuasive evidence establishes that instead of doing nothing—— as the incomplete video record of the incident appears to depict——Respondent did, in fact, immediately attempt to stop the students from play fighting by going to the back of the room where they were located, ordering them to stop, and threatening to subject them to disciplinary action by referring them to the office. When it became apparent the students were not going to stop despite these measures, Respondent went to the front of the room and looked to see if a security monitor was immediately available. Seeing none, and based on her prior experience of emergency calls going unanswered, she elected to call the Dean of Students, who had given his cell phone number to her and to other teachers specifically for such use. Accordingly, it is determined, as a matter of ultimate fact, that Respondent did not violate rules 6B-1.006 or 6B-1.001, and, therefore, did not commit misconduct in office in violation of rule 6A-5.056(3). Policy 3210 - Standards of Ethical Conduct School Board Policy 3210, Standards of Ethical Conduct, provides in relevant part: All employees are representatives of the District and shall conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. A. An instructional staff member shall: * * * 3. make a reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety[.] * * * As previously discussed, Respondent's actions in attempting to break up the play fighting and contacting the school administration constituted reasonable effort to protect her students from conditions harmful to learning and to their mental health and physical health and safety. Petitioner's sole evidence that Respondent sat by and did nothing consists of an incomplete video record of the incident that was contradicted by the persuasive, consistent testimony of Respondent and D.M., who were present when the incident occurred. Accordingly, it is determined that Respondent did not violate School Board Policy 3210. Policy 3210.01 - Code of Ethics School Board Policy 3210.01, Code of Ethics, provides in pertinent part: All members of the School Board, administrators, teachers and all other employees of the District, regardless of their position, because of their dual roles as public servants and educators are to be bound by the following Code of Ethics. Adherence to the Code of Ethics will create an environment of honesty and integrity and will aid in achieving the common mission of providing a safe and high quality education to all District students. As stated in the Code of Ethics of the Education Profession in Florida (State Board of Education F.A.C. 6B-1.001): The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one's colleagues, students, parents, and other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. * * * Fundamental Principles The fundamental principles upon which this Code of Ethics is predicated are as follows: * * * F. Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things. * * * Respect – Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three (3) major forms: respect for oneself, respect for other people, and respect for all forms of life and the environment. Responsibility – Thinking before acting and being accountable for their actions, paying attention to others and responding to their needs. Responsibility emphasizes our positive obligations to care for each other. Each employee agrees and pledges: To abide by this Code of Ethics, making the well-being of the students and the honest performance of professional duties core guiding principles. To obey local, State, and national laws, codes and regulations. To support the principles of due process to protect civil and human rights of all individuals. To treat all persons with respect and to strive to be fair in all matters. To take responsibility and be accountable for his/her actions. To avoid conflicts of interest or any appearance of impropriety. To cooperate with others to protect and advance the District and its students. To be efficient and effective in the performance of job duties. Conduct Regarding Students Each employee: A. shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety[.] Petitioner did not prove that Respondent violated Policy 3210.01. The persuasive evidence establishes that Respondent immediately responded to the play fighting by going to the back of the room and attempting to get the students to stop by yelling at them and threatening disciplinary action through office referrals. When these measures were not successful, Respondent followed proper protocol by expeditiously contacting the school administration regarding the matter. As previously discussed, Respondent's conduct did not violate Rule 6B-1.001, the Code of Ethics of the Education Profession in Florida, or the pertinent Fundamental Principles set forth in Policy 3210.01. Also as previously discussed, Respondent's conduct constituted a reasonable effort to protect her students from conditions harmful to their learning and to their mental and physical health and safety. For these reasons, it is determined that Respondent did not violate Policy 3210.01, Petitioner's Code of Ethics. Accordingly, there is no just cause, as required by subsections 1012.33(1)(a) and (6),5/ for Petitioner to suspend Respondent from her employment as a teacher for 30 work days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order rescinding the suspension of Respondent, Thelma Mobley, from her employment as a teacher for 30 work days without pay, and paying Respondent's back salary for the 30-day period for which she was suspended. DONE AND ENTERED this 17th day of April, 2013, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of April, 2013.
The Issue At issue is whether the Respondent committed the offenses set forth in the Administrative Complaint dated July 30, 2002, and if so, whether his employment should be terminated.
Findings Of Fact Mocombe has been employed by the School Board as a social studies teacher since 1997, when he graduated from Florida Atlantic University. He began his career substitute teaching at Sunrise Middle School (Sunrise), and later moved into a full-time position at Lauderhill Middle School (Lauderhill). In the years following graduation, while working as a teacher, Mocombe continued his studies at Florida Atlantic University and attained a master's degree and a Ph.D. He also received three formal reprimands, and a reputation as a person who could engage in adolescent behavior toward peers and insubordinate behavior to his principal without suffering any meaningful consequence. Mocombe calls himself a brilliant teacher, whose teaching philosophy is informed by his belief that "Revolution comes first. I'm a Marxist." Also a high priority for Mocombe is hedonism. Mocombe is known at Lauderhill as a "player," a term defined by one witness as "[S]omeone who has a lot of women and a lot of women [who] know about each other," a characterization which Mocombe embraces. Although married, Mocombe had a sexual relationship with a teaching colleague at Lauderhill by the name of Belinda Hope (Hope). He also was attracted to a first year teacher by the name of Kim Barnes (Barnes). Specifically, said he wanted to "get into her pants," during the 2000-2001 school year. Mocombe has no sense of boundaries in the workplace. He freely offers his opinions on religion, politics, and sex, some intended to be humorous, some not. Mocombe is aware of his need to be the center of attention and to shock people. He testified, "Even in school, I used to go walking around and said I was God just to get a reaction out of people." Most adults tread carefully, or not at all, around such deeply personal subjects. The training and ethics of the teaching profession emphasize respect for the dignity and worth of each individual, irrespective of his political and religious beliefs, or lack thereof. Teachers are educated to understand that sophomoric jokes about sex are not to be inflicted upon unwilling listeners. These lessons are reemphasized annually in sexual harassment training provided to all teachers employed by the School Board. Mocombe did not benefit from this training. He was known at Lauderhill for a constant stream of crude references to sex. He made no secret of his view that a woman's role is to have babies and serve men sexually. In addition, Mocombe would mock organized religion in the presence of colleagues who take their faith seriously. He often spoke of starting his own church, in which he would be known as Prophet Paul and the prerequisite for all women seeking to join the church would be to have his baby. Such comments, as well as his propensity to refer to women as "bitches" and "whores," were deeply offensive to some, but they kept silent. Lauderhill was an ideal environment for Mocombe. The atmosphere at the school is sexually charged to an extent inappropriate to the serious business of teaching children who are at a fragile stage of their own sexual development. Adolescent sexual banter consumes a great deal of time in and out of Lauderhill's teachers' lounge. At least in Mocombe's class, cursing and horseplay in the presence of the teacher-- even with the teacher--is acceptable. Unrebutted testimony placed an assistant principal in the main office discussing "sex, among other things," with Mocombe and other members of Lauderhill's staff in the main office at a time when at least one person not employed there could hear their discussion. Phillip Patton (Patton) was Mocombe's principal, first at Sunrise and later at Lauderhill. Patton's patience with Mocombe's behavior was seemingly boundless. In the lax atmosphere at Lauderhill, some of Mocombe's colleagues regarded his frequent references to sex, as well as to religion, politics, and the appearance of female colleagues, as harmless banter. Others, such as Marrisa Cooper (Cooper) who testified on Mocombe's behalf, felt that it was not the school's responsibility to deal with harassment; rather, the person at whom the harassment was directed should have the "balls" to deal with it. Cooper explained that it was understood at Lauderhill that Mocombe [believed] "that women are there to have children, which everyone always disagrees with statements because he always makes these general statements about women, and a lot of people take them as being belittling or degrading women. I don't take it personal because you are not talking to me, I know what I am made of and the way I am, so I never take them personally. But again, everybody maybe don't have the balls that I have." Others at Lauderhill were offended by Mocombe's conduct, but kept their silence, believing that Patton would not impose meaningful discipline on him. In fact, Patton's patience with Mocombe ran out only when Barnes and another teacher, Tracey Bryant (Bryant) put their complaints in writing, at which time Patton was required by School Board policies and procedures to forward the complaints for follow- up by trained investigators. The charges at issue here arise out of Mocombe's interaction with three individuals, student Hudson Mortimer (Mortimer), and the above-mentioned teachers Bryant and Barnes. Each situation is discussed separately in paragraphs 16 through 77, below. Hudson Mortimer: At the time of the incident alleged in the Administrative Complaint, Mortimer was a sixth grader at Lauderhill and a student of Mocombe's. Mortimer shares Mocombe's high opinion of himself as a teacher. Although Mortimer testified at the behest of the School Board, he volunteered, "I don't think he should get his license suspended." On October 11, 2001, Mocombe and Mortimer were "playing with each other." More particularly, Mortimer was "cracking" on his teacher, calling him "ugly and stuff." Mortimer's and Mocombe's accounts of the incident are consistent, and create a picture of two kids on the same level, playing together when they should be working. The incident began with Mortimer and Mocombe trading good natured insults, which included adolescent name-calling, using phrases such as "ugly-ass," while tossing whatever object was at hand at one another. Eventually Mocombe tossed a marking pen at Mortimer which hit the student over one eye, causing minor injury. The School Board contends that this incident constitutes the imposition of inappropriate discipline of sufficient severity to warrant termination. Pursuant to School Board rules and policies requiring that events which may give rise to litigation be documented, Patton, through a staff member, sent an accident report form to Mocombe for him to fill out. Mocombe refused, saying, "I'm not filling out anything, it was an accident. Patton wants to, he can fill it out himself." Patton took no disciplinary action against Mocombe for his refusal to comply with this routine and entirely appropriate request that he follow a reasonable School Board policy. This was not the first time, nor would it be the last, that Mocombe was given to understand that there would be no meaningful consequence to him for ignoring rules which he did not wish to follow. Tracey Bryant: Bryant is a 13-year teacher. Her complaint against Mocombe arises out of an incident which she characterizes as sexual harassment, and which occurred in the teachers' lounge at Lauderhill on April 5, 2001. At the time of the incident, Bryant was one of about a half dozen teachers present in the lounge. While conversing with a colleague, she was interrupted by Mocombe who asked, "Ms. Bryant are you pregnant?" Stunned, she coldly told him, "No." Referring to Bryant and to another teacher then present, Mocombe commented to the effect that their "butts were getting to be alike---hanging." Bryant quickly left the room. Here, as with the incident involving Mortimer, Mocombe and the alleged victim tell similar stories. Both agree that Mocombe was intending to be jocular in his interaction with them. But while Mocombe's alleged student victim supports the manner in which Mocombe interacts with him in general, and in particular is not offended by the allegedly inappropriate conduct set forth in the Administrative Complaint, Bryant felt "humiliated and disrespected" by Mocombe's comments about her size. In addition, Bryant was aware of Mocombe's history of making what she viewed as inappropriate comments about and to females. She had heard him make numerous comments she regarded as inappropriate in the workplace to Hope, a good friend of hers with whom Mocombe would eventually have an acrimonious break-up. When the offensive comment about Bryant's size was directed to her personally, she complained, in writing, to Patton. The conflict between Bryant and Mocombe continued at the hearing. At one point, Mocombe snickered during legal argument being made by the School Board attorney while Bryant was on the witness stand. Mocombe was provoked by a comment made to him by the School Board's attorney (who in turn was admonished to direct his comments to the tribunal, and not to parties or witnesses) and said of the School Board's charges against him, "I find it baffling and humorous, yes." Bryant immediately jumped in to say, "That's how he is, yes. No remorse or nothing." Bryant's reading of Mocombe's attitude is accurate. During his testimony, Mocombe supplied details of the incident which were not presented in the School Board's case, and which reflect a lack of understanding of why his conduct was so offensive. After having months to reflect on why Bryant brought these charges, Mocombe remains unembarrassed by his faux pas of assuming--and saying aloud to a roomful of colleagues--that Bryant's weight gain was due to pregnancy. He volunteered during his testimony that rather than drop the subject after Bryant made her displeasure clear, Mocombe persisted, discussing his exchange with Bryant about Bryant's weight with another colleague, Vicki Drane. While not denying the substance of Bryant's account of the incident in the teachers' lounge, Mocombe argues that Bryant is out to get him because of his break-up with Hope. However, neither Mocombe nor any of his witnesses offered any type of corroboration in support of his assertion that Bryant and others conspired to avenge his spurned lover by getting him fired. After carefully observing Bryant's demeanor under oath, and considering the entire record, the undersigned finds no evidence to suggest that Bryant's testimony was untruthful, or that her complaint was motivated by anything other than her own distress at Mocombe's callous behavior in calling attention to her weight gain, behavior which hurt and embarrassed her in front of her colleagues. Kim Barnes: Barnes met Mocombe in the office at Lauderhill, where she was being interviewed for what would become her first teaching job. As previously noted, the School Board provides annual training to its employees regarding sexual harassment and other types of conduct inappropriate in the workplace. But Barnes' first contact with Lauderhill employees in their main office, where the administrative staff, including the principal, have their offices, suggested an atmosphere inconsistent with what is to be expected in a well managed place of learning. Mocombe acknowledges that he wanted to "impress" Barnes in order to "get into her pants." This is his account of his first meeting with Barnes in the school office: The first -- the very first interaction I had with Ms. Barnes were the beginning of the last school year. We were in teacher planning. She came in for an interview and we were all in the student office discussing sex among other things. Q. Who was we? A. Ms. Cooper, Ms. Mayo, who was the office manager, the assistant principal at that time, Mr. King, myself, and Ms. Barnes. And I made the reference about I want six children. My actual reference was my goal is to have as many little Mocombes running around so I can start my own revolution, take over the world, my own Marxist revolution and indoctrinate them. And she made the reference that she wanted to have five children. I thought hey, we could work out if that's the case. (Transcript page 276, lines 2-19). In hindsight, it was a mistake for Barnes to tell Mocombe the number of children she might like to have. The above-mentioned defense witness, Cooper, was an office worker at Lauderhill and was present and participated in the discussion of "sex among other things." Cooper, knowing of Mocombe's obsession with sex, deemed that Barnes, having joined the discussion to the extent of remarking that she would like to have five children, had granted consent for Mocombe to make sexual advances. Barnes' account of the conversation is slightly different. She recalls telling Mocombe she might like to have five children in response to a direct question by him. Perhaps she voluntarily "made the reference," as Mocombe recalls. This is the type of minor discrepancy to be expected from witnesses asked to recall the details of an event which took place months ago. What is important is that Mocombe did not then and does not now see why the comments which he freely admits making are utterly inappropriate to the time and place where he made them. Although Cooper considers herself a friend of Mocombe, in giving testimony on his behalf, she volunteered that on the day of the Barnes' job interview, Cooper commented to Barnes that Mocombe was "no good." Counsel for Respondent did not suggest what issue this testimony goes to, but the testimony offered on Mocombe's behalf, taken together, suggests a belief by Mocombe and his friends that Barnes was on notice that as a "player," Mocombe was unable to relate to professional women in a professional way, and that he was not expected to do so by his colleagues or supervisors. Barnes was hired and began work at Lauderhill in the fall of the 2000-2001 school year. In the beginning, Mocombe confined his comments to Barnes to acknowledging her presence, usually in terms of her looks, such as, "Hi, sexy." Over time, the comments became more graphic. Mocombe would remark on the size of Barnes' breasts, her "phat (pretty hot and tender) ass" and would state his desire to have sex with her in stunningly offensive terms. In November 2000, Barnes expressed her distress about Mocombe's conduct to Reginald Edwards (Edwards), a substitute teacher who also works as a Baptist pastor. Edwards reported Barnes' concerns to principal Patton. Patton did nothing to follow up. Barnes also expressed her distress to her assigned teaching mentor, Arnetta Davis (Davis). Davis advised her that Mocombe was well known for this type of conduct, and recommended that she try to "nip it in the bud." Barnes is not an aggressive personality, but she tried to make Mocombe understand that she did not appreciate his comments. Mocombe was not deterred. Her efforts to nip Mocombe's conduct in the bud having failed, Barnes conferred again with Davis. Davis confirmed what Barnes had come to suspect: Mocombe conducted himself in this manner because he had been doing so for as long as he had been teaching, with no more than a wrist slap ever imposed. Barnes came to hold a reasonable belief that, in Davis' words, "apparently everyone knew about it, [Mocombe's inappropriate behavior] it was just how he was, and everyone just basically looked a blind eye about it." Davis could not provide Barnes with any assurance that if she complained to Patton, Mocombe would experience any meaningful consequence. Worse, Davis confirmed Barnes' fear that she, Barnes, might be deemed a troublemaker and be "blackballed" if she complained. Barnes was in no position to be blackballed. At the time she began her employment at Lauderhill, she had not yet received her permanent teacher's certificate. Moreover, she needed a summer teaching job and believed she was not likely to get one by being a "troublemaker." Based upon Davis' advice, and her own observation that Mocombe's constant sex talk was part of the landscape at Lauderhill, Barnes reasonably feared that Mocombe would continue to be protected by Patton, and that her own career might be seriously impaired if she sought to avail herself of School Board policies and procedures designed to provide employees recourse from sexual and other types of harassment. Davis' advice to Barnes was reasonable. Davis had witnessed Mocombe conduct himself in an unprofessional and disruptive manner at faculty meetings with no apparent consequences. Interestingly, at least by the time of the hearing, Mocombe's perception of his relationship with Patton differs from the perception shared by most of Lauderhill's professional staff. Mocombe came to feel that Patton would go out of his way to write [Mocombe] up for anything which Patton believed to be a challenge to his authority. But the totality of the evidence suggests that at all times material to this case, the belief widely held by Lauderhill staff that Patton's patience with Mocombe was practically unlimited, is closer to the truth. By March of 2001, Mocombe's conduct toward Barnes had escalated. One day, Barnes came in to the teachers' lounge to check mail. About a half dozen teachers were present. Mocombe freely--indeed proudly--described this incident: he said, for all to hear, "I can't stand up because my dick is hard, or I'm hard." Davis was coming to believe that she could no longer ethically ignore Mocombe's conduct toward Barnes. Around the time Bryant made her written complaint to Patton, Davis went to Patton on Barnes' behalf. Patton in turn went to Barnes and told her that she had to put her complaints about Mocombe into writing if anything was to be done. Barnes did so. By way of defense, Mocombe suggests that Barnes was the aggressor, pursuing him to consummate a physical relationship. Mocombe says he chose not to have sex with Barnes. This excerpt from Mocombe's testimony fairly summarizes his theory of the case: The same reason she was inquiring of Mr. Edwards about me, and she found out about my dealings with women. I turned her down, all right. If that's what you want to ask, we didn't have sex because I didn't want to have sex. Q. She wanted sex but you didn't? A. I didn't say that. I just said we didn't have sex. I chose not to have sex. I didn't say -- Q. Did you ask her? A. We came close a couple of times in the classroom. Q. To have sex with her? A. That's what you want. Yeah, we did. We came close a couple of times in the classroom. Every day for 20 to 25 days in the classroom with this woman, and you think -- maybe you [sic] blind. Yeah, I'm a good looking man. You must be out of your mind. (Transcript page 310, lines 6-24). Mocombe also claimed, with reference to Barnes, "This girl hugged me every morning in the lounge" and that on at least five occasions she voluntarily engaged with him in activities which, if done by teenagers, would be called "making out." Mocombe never attempted to reconcile this testimony with his admission that he wanted to "get into [Barnes'] pants." Moreover, there are numerous ways in which the colorful incidents recounted by Mocombe, if they occurred, could be corroborated. For example, Mocombe claims he said to Barnes in the presence of two teachers, one of whom testified at the hearing, that he confronted Barnes after learning she had filed a complaint. As he described the scene, "I was like, hell, no. I didn't do anything to this heifer. I was like just Friday you were kissing me." Leaving aside the use of Mocombe's highly derogatory term "heifer," had Mocombe said such a thing in the heat of this particular moment, it surely would have made an impression upon Barnes and the other witnesses. Yet none of them was questioned about it. Rather, Mocombe expects the trier of fact to accept his version because, as he put it, "Come on now. Hey, I'm a good looking man. Not only that, I'm intelligent too I don't know what [sic]. So she is ridiculous. But you know what, she got that off. They set me up. It's good. I like that." Upon receipt of the written complaints from Bryant and Barnes, Patton, in accordance with School Board procedure, informed Mocombe of the charges and instructed him not to contact either complainant. According to Patton, Mocombe's response to the accusations was nonchalant. In fact, Mocombe was enraged. He ignored Patton's no-contact directive and approached both Barnes and Bryant in an effort to convince them to drop their complaints. This is how Mocombe described the scenes when he made his unauthorized approaches to Barnes and Bryant: "You know what the fuck, I'm sorry whatever [sic], just cancel this shit. . . . And then I went over to Tracey Bryant, and I was like what, you were having a bad day. I was asking you are you pregnant. She was like, yeah, she was having a bad day. Ms. Russell asked me to apologize. I like apologized. And that was it. That was it. And Ms. Bryant said she was going to drop it, and then that was it. " Elsewhere in his testimony, Mocombe described the post-complaint encounter with Barnes in more detail: ". I walked to her classroom . . . I was like what the fuck is your problem. Are you a psycho. What's the [sic] fuck. You know what, I actually said you are a fucking nut bag. What the hell is this. She was like---she sat on the desk. She got on the desk and was like I'm afraid of you Mocombe. I was like what the fuck is wrong with you. I am like are you a psycho. I am like are you psychotic." Because Mocombe is not charged with insubordination or any other infraction based upon his disregard of the instruction that he not communicate with Barnes and Bryant, ordinarily testimony about these communications would be irrelevant and inadmissible. But, Mocombe did not object to testimony about these communications from School Board witnesses, and was eager to talk about these encounters himself. Mocombe appears to view his accounts of these incidents as exculpatory. To the contrary, if Barnes had ever pursued a sexual relationship with Mocombe, one would expect that his tirade about her complaint would have taken a very different form. Mocombe's testimony on cross-examination provides additional insight into Mocombe's sense of entitlement to disregard basic standards of civility and respect towards colleagues, and to view any attractive co-worker as a potential sex partner. This passage, which summarizes Mocombe's view of the charges against him, is instructive on that point, and also contains an additional admission that he was seeking to have sex with Barnes: Can you get to the real issue here? I don't believe Mortimer is the actual issue here. The actual issue is regarding Kim Barnes and Tracey Bryant. Simply add that on to show some kind of -- that I'm an ineffective teacher. I'm a brilliant teacher. Even Patton will admit to that fact, and nothing here has anything to do with my ability to teach. Because I'll be frank, I'm a brilliant teacher, I'm 27 years old. Continue. Q. Thank you. Let's then go on to the major issue. The heifer as you described Ms. Barnes, you were just seeking to have sex with her; is that right? A. For the most part, yes. (Transcript page 295, lines 11-24). On this and several other occasions during his testimony, Mocombe stated, "I'm 27," in contexts which suggested that in his view, his youth exempts him from standards of conduct which apply to older people. The law makes no such distinction. The common thread which runs through the testimony of witnesses for both sides is that Mocombe believes his youth, good looks and personality exempt him from the constraints of middle class morality, to the extent that it demands that teachers exhibit basic respect for all persons, whether or not, in the teacher's opinion, such respect is deserved. Mocombe is a young man of obvious intelligence and charisma, and Patton did him a disservice in turning a blind eye to his refusal to conform his conduct to the requirements of the standards of his profession. Even at the hearing, Mocombe was unable to control his desire to articulate, in crude terms, his contempt for those he disrespects. This exchange from Mocombe's cross-examination is illustrative: Q. All right. And you also touched her body parts; is that correct? A. Sure. Don't you touch your wife? (Transcript page 298, lines 6-8). Asked at the hearing if he acted inappropriately toward Barnes, Mocombe replied, "According to her I did. No, I honestly don't think so, no. I thought it was in jest. . . . I thought it was just we were something. I didn't just fall off the turnip truck for Christ's sake. I have a Ph.D. in philosophy. Anyway. No, I don't feel I acted inappropriately to Ms. Barnes." Mocombe has had months to think about it, but he continues to adhere to the belief that he is entitled to give free rein to his hedonistic impulses, and to express them in the crudest possible terms. Based upon the undersigned's careful observation of the parties and witnesses under oath, and throughout the hearing, and after careful consideration of the record as a whole, the suggestion by Mocombe and his witnesses that Barnes pursued Mocombe and was a willing participant in make-out sessions with him is expressly rejected. Neither has Mocombe proven a conspiracy by the friends of his former lover to destroy Mocombe's career. Even if School Board witnesses are motivated in whole or part by affection for Hope, and there was no competent evidence to support this view, the question of whether Mocombe may be lawfully terminated must be determined with reference to his conduct, and not the joy, or lack thereof, which witnesses may feel at the outcome. Prior disciplinary history: There is a theme which runs through the incidents which give rise to Mocombe's current difficulties. The common denominator is immaturity. Mocombe does not have an adult understanding of how his behavior offends contemporary standards of appropriate workplace behavior, and the corrosive impact of his coarse language and preoccupation with sex upon the professional environment which the public has a right to expect in its schools. In his short teaching career, he has received three reprimands, all relating to incidents in which he was unable to follow well known rules of acceptable workplace communication. Mocombe received his first reprimand while still a substitute teacher at Sunrise, where Patton was principal. He was reprimanded for using inappropriate language in the presence of students. The reprimand, dated January 5, 1999, included a directive requiring him to enroll in a teacher training class. On April 11, 2000, Mocombe was reprimanded for unprofessional and profane comments made toward his former lover, Hope. Mocombe's tirade occurred in Patton's presence. Mocombe screamed at Hope such comments as, "Fuck you, you bitch--yeah I fucked you, you ain't nothing but a damn whore; you're nothing but a good fuck; I am gonna put my foot up your ass." The letter of reprimand regarding this incident cited Rule 6B-1.006 which requires that educators refrain from engaging in "harassment or discriminatory conduct which unreasonably interferes with an individual's performance or professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. " The letter specifically warned that further misconduct of any nature could result in termination of employment. On January 10, 2001, Mocombe received a letter of reprimand for sending a chain letter to all of his teaching colleagues at Lauderhill in violation of well-established school board policy prohibiting the use of the in-house email system for communications unrelated to work. Mocombe's testimony revealed a complete lack of understanding that he has done anything wrong. Instead, he believes he is being "railroaded" in these proceedings. Based upon his prior disciplinary history, and the manner in which his defense was conducted, the conclusion is inescapable that if reinstated, Mocombe would continue to exhibit, during working hours, his passion for "revolution, education, and hedonism" in whatever manner he pleases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order discharging Mocombe from further employment in the Broward County Public Schools. DONE AND ENTERED this 14th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings 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 this 14th day of March, 2003. COPIES FURNISHED: Robert F. McKee, Esquire Kelly & McKee 1718 East 7th Avenue, Suite 301 Post Office Box 75638 Tampa, Florida 33675-0638 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316-1924 Dr. Franklin L. Till, Jr., Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue Whether Respondent is guilty of violating section 1012.795(1)(c), Florida Statutes (2014)1/; and, if so, what penalty should be imposed by the Education Practices Commission (Commission).
Findings Of Fact During all times relevant hereto, Petitioner was a teacher certified by the State of Florida in the areas of elementary education and social science, and she held Florida Educator's Certificate 842941, which expired June 30, 2016. Respondent first entered the teaching profession in 1999. At all times material to the allegations in this case, Respondent was employed by the Hillsborough County School District (HCSD). During the 2012-2013 and 2013-2014 school years, Respondent taught social science at Madison Middle School. During the years in question, HCSD had a written system for evaluating the classroom performance of its teachers. The evaluation system was reviewed and approved by the Florida Department of Education. The evaluation system consists of multiple components which, when combined, result in a final teacher evaluation performance rating. In its broadest sense, the system used by HCSD to evaluate teacher performance relies on input from a teacher’s supervising principal, input from a teacher’s peers and/or mentors, and a value-added measure (VAM) score, which is based on student achievement. According to the Teacher Evaluation Handbook for the HCSD, the principal’s evaluation accounts for 35 percent of a teacher’s overall evaluation score, the peer/mentor’s evaluation accounts for 25 percent of a teacher’s overall evaluation score, and the VAM score accounts for 40 percent of a teacher’s overall evaluation score. Observation and Written Evaluation Throughout the course of a school year, an evaluating principal and peer/mentors (collectively referred to as evaluators) conduct a number of formal and informal classroom “observations” of the teacher being evaluated. Findings from formal and informal observations are characterized, based on a framework of four “domains,” as highly effective, effective, needs improvement, and unsatisfactory. The observations are memorialized and feedback is regularly provided to the teacher during the school year. At the conclusion of the observation cycle, the evaluators, based on the formal and informal observations, prepare a written “evaluation” which summarizes and quantifies (assigns a numerical value) the teacher’s performance for the entire school year. The framework for rating observations and scoring evaluations consists of four domains, each of which has five to six components. According to the teacher evaluation instrument, the domains and their components are as follows: Domain 1: Planning and Preparation. The components in Domain 1 outline how a teacher organizes the content and plans the instructional delivery. (1A) Demonstrating Knowledge of Content and Pedagogy (1B) Demonstrating Knowledge of Students (1C) Setting Instructional Outcomes (1D) Demonstrating Knowledge of Resources and Technology (1E) Designing Coherent Instruction (1F) Designing Student Assessments Domain 2: The Classroom Environment. The components in Domain 2 address the learning environment. This includes the interactions in the classroom, the classroom culture, the teacher’s use of physical space, and established routines and procedures. (2A) Creating an Environment of Respect and Rapport (2B) Establishing a Culture for Learning (2C) Managing Classroom Procedures (2D) Managing Student Behavior (2E) Organizing Physical Space Domain 3: Instruction. The components of Domain 3 embody the core of teaching –the engagement of students in activities that promote and foster learning. (3A) Communicating with Students (3B) Using Questioning and Discussion Techniques (3C) Engaging Students in Learning (3D) Using Assessment in Instruction (3E) Demonstrating Flexibility and Responsiveness Domain 4: Professional Responsibilities. The components of Domain 4 represent the wide range of a teacher’s responsibilities outside the classroom. These include reflecting on teaching, maintaining accurate records, communicating with stakeholders, contributing to the school and district, growing and developing professionally, and showing professionalism. (4A) Reflecting on Teaching (4B) Maintaining Accurate Records (4C) Communicating With Stakeholders (4D) Participating in a Professional Community (4E) Growing and Developing Professionally (4F) Showing Professionalism The weight assigned to each domain (within either the principal or peer/mentor category) is 20 percent, with the exception of Domain 3, which is weighted at 40 percent. Domain components 4B through 4F are only reviewed by the teacher’s principal. Domain 1 addresses “planning and preparation,” and “[t]he components of Domain 1 outline how a teacher organizes the content and plans the instructional delivery.” Domain 2 addresses “classroom environment,” and “[t]he components of Domain 2 address the learning environment [which] . . . includes the interactions in the classroom, the classroom culture, the teacher’s use of physical space, and established routines and procedures.” Domain 3, which again is weighted twice as much as the other domains, addresses “instruction,” and “[t]he components of Domain 3 embody the core of teaching–the engagement of students in activities that promote and foster learning . . . [and the] components include: communicating clearly and accurately, using questioning and discussion techniques, engaging students in learning, providing feedback to students, and demonstrating flexibility and responsiveness.” Domain 4 addresses “professional responsibility,” and “[t]he components of Domain 4 represent the wide range of a teacher’s responsibilities outside the classroom . . . include[ing] reflecting on teaching, maintaining accurate records, communicating with stakeholders, contributing to the school and district, growing and developing professionally, and showing professionalism.” For purposes of scoring a teacher’s evaluation, a zero point value is assigned whenever a domain component is given a rating of “requires action,” a single point is given whenever a domain component is rated as “progressing,” two points are given whenever a teacher is rated as “accomplished,” and three points are given for an “exemplary” rating. Value Added Measure According to the Teacher Evaluation Handbook for Hillsborough County, VAM is: statistical model that uses a variety of variables to estimate the expected one year learning growth of each student. The growth expectation estimate is then compared to actual growth, as measured by relevant course and content assessments. In order to measure a teacher’s impact on student achievement, the model controls for variables that are outside of the teacher’s control, such as past years’ learning growth trajectory, and special needs. In doing so, the teacher’s impact on student growth can be isolated and calculated. The VAM score is 40 percent of the teacher’s overall annual evaluation. 2012-2013 Observations and Evaluation Respondent, during the 2012-2013 school year, had one formal and two informal observations conducted by peer/mentors, and one formal and two informal observations conducted by her principal. Respondent, at the end of the 2012-2013 school year, was evaluated by both her peer/mentor and her principal. Katherine Hodges is one of the peer/mentors who observed and evaluated Respondent during the 2012-2013 school year. Ms. Hodges was a teacher in the HCSD from 2005-2015 where she taught eighth grade U.S. history, humanities, and served as a middle school social studies peer/mentor evaluator. Twanya Hall-Clark is another individual who conducted observations of Respondent during the 2012-2013 school year. Ms. Hall-Clark has been employed by HCSD as an educator for more than 20 years and has served as a school administrator since 2000. Ms. Hall-Clark has been trained in the use and implementation of the HCSD teacher evaluation system and has conducted hundreds of teacher observations and evaluations. Jeffery Colf also served as a peer/mentor and observed Respondent during the 2012-2013 school year. Joseph Brown served as the school principal where Respondent worked during the 2012-2013 school year, and was responsible for observing and evaluating Respondent’s performance. Dr. Brown became an educator in 1986 and a principal in 1998. Dr. Brown was trained in the use and implementation of the HCSD teacher evaluation system and has observed and evaluated hundreds of teachers during his tenure as an administrator. In determining a teacher’s evaluation rating, evaluators consider observation ratings and information provided by the teacher who is being evaluated. After considering these factors, Respondent’s peer/mentor evaluation for the 2012-2013 school year was “requires action” for component 2C; “progressing” for components 1A through 1C, 1E through 2B, 2D, and 3A through 3E; and “accomplished” for components 1D, 2E, and 4A. Respondent’s principal evaluation for the 2012-2013 school year was a rating of “progressing” for every component except 4A, for which she received a rating of “accomplished.” When quantified, Respondent’s 2012-2013 peer/mentor evaluation score was 8.80 and her principal evaluation score was 12.00, which resulted in a combined total evaluation written score of 20.80. The HCSD mean (average) for teachers during the 2012-2013 school year was 36.86. For the 2012-2013 school year, Respondent’s written evaluation score gave her a percentile rank of 1.70 percent. In other words, 98.30 percent of the teachers evaluated by HCSD for the 2012-2013 school year had a higher written evaluation score than Respondent. Respondent’s 2012-2013 VAM score was 18.7201. The HCSD mean for teachers during the 2012-2013 school year was 24.14. For the 2012-2013 school year, Respondent’s VAM score gave her a percentile rank of 2.30 percent when compared to her peers. Stated succinctly, 97.70 percent of the teachers evaluated by HCSD for the 2012-2013 school year had a higher VAM score than Respondent. Respondent’s total evaluation score for the 2012-2013 school year was 39.3. The HCSD mean for all teachers evaluated during the 2012-2013 school year was 61. Respondent’s total evaluation score for the 2012-2013 school year resulted in her achieving a percentile rank of 0.89 percent, meaning that 99.11 percent of the teachers evaluated by HCSD during the 2012-2013 school year scored higher than Respondent. Respondent’s total evaluation score of 39.3 resulted in Respondent receiving an overall evaluation rating of “unsatisfactory” for the 2012-2013 school year. For the 2012- 2013 school year, Respondent would have needed an overall evaluation score of 40 in order to secure the next highest evaluation designation of “needs improvement.” By letter dated September 18, 2013, Respondent was notified of the deficiencies in her performance and advised that she would be placed on a teacher assistance plan for the 2013- 2014 school year. Teacher Assistance Plan Respondent, as a consequence of receiving an unsatisfactory evaluation for the 2012-2013 school year, was placed on a mandatory teacher assistance plan during the 2013- 2014 school year. The stated goal of the plan is “[t]o assist teachers who earned a previous overall Unsatisfactory evaluation so that their performance reaches a satisfactory level for the current school year.” Teachers who are placed on a teacher assistance plan are assigned a support team which is composed of experienced educators. Teacher assistance plans have “areas of focus” which correspond to the four domains covered by the annual evaluation. The teacher assistance plan developed for Respondent focused on the domains of “planning and preparation (Domain 1)” and “instruction (Domain 3).” Respondent first met with her support team on October 15, 2013, where “assistance strategies” were developed for Domains 1 and 3. The specific strategies set goals of “designing coherent instruction (component 1-e)” and “improving feedback practices (component 3-d).” During the support team meeting on October 15, 2013, Respondent explained that her unsatisfactory rating for the 2012- 2013 school year was largely attributable to the fact that she “floated” between classrooms, and that she expected improvement in her performance for the 2013-2014 school year because she had her own classroom. Support team members provided Respondent with “a packet of resources” and arranged for Respondent to observe a high-performing teacher in an instructional setting. On December 18, 2013, Respondent met with members of her support team to discuss and review Respondent’s progress towards achieving the goals established in her teacher assistance plan. A summary report from the meeting provides as follows: The meeting began with a review of the Oct. 2013 action plan meeting and an update of the action steps. Ms. Patti also presented her summary notes of the observations and action she has taken since October. Those notes are included in her folder. Ms. Patti said that she observed Mr. Kline in his science class. She liked how each student had an assigned role while in group work. Ms. Patti also showed a teacher[-]made quiz she designed based off information from the LDC lesson. For the quiz she prompted students to use text marking and identify the key concepts not just the action (such as describe or discuss). Ms. Patti is using a website titled floridacivics.org for lesson plan ideas and resources. Ms. Patti also wants to observe another teacher. Dr. Brown will ask Mr. Sullins if he is willing to have Ms. Patti observe during the third nine weeks. Suggestions were made to either have another teacher observe or have a lesson video-taped for Ms. Patti to watch herself. She did not want to pursue either option at this time. Dr. Brown will follow up to set a date for the February Action Plan review. On March 27, 2014, Respondent again met with her support team. A written summary of the meeting notes that Respondent did not meet the goal of observing another teacher’s class as discussed during the meeting on December 18, 2013. 2013-2014 Observations and Evaluation Respondent, during the 2013-2014 school year, had two formal and three informal observations conducted by peer/mentors, two formal and three informal observations conducted by her principal, and one formal observation by her supervisor. Respondent, at the end of the 2013-2014 school year, was evaluated by both her peer/mentor and her principal. As previously noted, when determining a teacher’s evaluation rating, evaluators consider observation ratings and information provided by the teacher who is being evaluated. After considering these factors, Respondent’s peer/mentor evaluation for the 2013-2014 school year was “requires action” for component 3E; “progressing” for components 1A through 1C, 1E through 2D, 3A through 3E, 4A; and “accomplished” for components 1D and 2E. Respondent’s principal evaluation for the 2013-2014 school year was “requires action” for components 4F; “progressing” for components 1A through 1C, 1E through 2B, 2D, 3A through 3E, and 4B through 4E; and “accomplished” for components 1D, 2C, 2E, and 4A. When quantified, Respondent’s 2013-2014 peer/mentor evaluation score was 8.35 and her principal evaluation score was 11.90, which resulted in a combined total evaluation written score of 20.25. The HCSD mean (average) for teachers during the 2013-2014 school year was 36.86. For the 2013-2014 school year, Respondent’s written evaluation score gave her a percentile rank of 1.47 percent. In other words, 98.53 percent of the teachers evaluated by HCSD for the 2013-2014 school year had a higher written evaluation score than Respondent. Respondent’s 2013-2014 VAM score was 17.4192. The HCSD mean for teachers during the 2012-2013 school year was 24.04. For the 2013-2014 school year, Respondent’s VAM score gave her a percentile rank of 0.85 percent when compared to her peers. Stated succinctly, 99.15 percent of the teachers evaluated by HCSD for the 2013-2014 school year had a higher VAM score than Respondent. Respondent’s total evaluation score for the 2013-2014 school year was 37.66. The HCSD mean for all teachers evaluated during the 2013-2014 school year was 60.94. Respondent’s total evaluation score for the 2013-2014 school year resulted in her achieving a percentile rank of 0.24 percent, meaning that 99.76 percent of the teachers evaluated by HCSD during the 2013-2014 school year scored higher than Respondent. Stated differently, in Hillsborough County public schools for the 2013-2014 school year, there were only 28 teachers of 12,068 who had a worse evaluation score than Respondent. Respondent’s total evaluation score of 37.66 resulted in Respondent receiving an overall evaluation rating of “unsatisfactory” for the 2013-2014 school year. For the 2013- 2014 school year, Respondent would have needed an overall evaluation score of 42 in order to secure the next highest evaluation designation of “needs improvement.” Despite being on a teacher assistance plan, Respondent’s performance, relative to her peers, actually declined during the 2013-2014 school year when compared to the previous school year. By letter dated July 10, 2014, Respondent was advised that because she received unsatisfactory evaluations for the 2012-2013 and 2013-2014 school years, HCSD was notifying the Department of Education of her poor performance and that she was being reassigned pending confirmation of her VAM scores for the year. By order dated April 6, 2016, the School Board of Hillsborough County terminated Respondent’s employment. Domain 3 and VAM As noted previously, Domain 3 embodies “the core of teaching.” The peer/mentor and principal comments for Domain 3 components for the 2012-2013 school year provide as follows with respect to Respondent’s performance: (3A) The teacher’s attempt to explain the purpose/relevancy of the lesson’s instructional outcomes has only limited success, and/or directions and procedures must be clarified after initial student confusion. The teacher’s explanation of the content may contain minor errors; some portions are clear; other portions are difficult to follow. The teacher’s explanation consists of a monologue, with no invitation to the students for intellectual engagement. The teacher’s spoken language is correct; however, vocabulary is limited or not fully appropriate to the students’ ages or backgrounds. (3B) The teacher’s questions lead students through a single path of inquiry, with answers seemingly determined in advance. Alternatively the teacher attempts to frame some questions designed to promote student thinking and understanding, but only a few students are involved. The teacher attempts to engage all students in the discussion and to encourage them to respond to one another, with uneven results. (3C) The learning tasks or prompts are partially aligned with the instructional outcomes but require only minimal thinking by students, allowing most students to be passive or merely compliant. Learning activities are not sufficiently challenging and lack the rigor to promote intellectual engagement. The pacing of the lesson may not provide students the time needed to be intellectually engaged. (3D) Assessment is occasionally used in instruction, through some monitoring of progress of learning by teacher and/or students. Feedback to students is uneven, and students are aware of only some of the assessment criteria used to evaluate their work. (3E) The teacher attempts to modify the lesson when needed and to respond to student questions with moderate success; however, alternate instructional strategies are limited and minimally successful. The teacher accepts responsibility for student performance. In response to student progress data, the teacher re-teaches, as appropriate. Because Respondent received an overall unsatisfactory performance rating for the 2012-2013 school year, she was evaluated by her principal mid-way through the 2013-2014 school year, and again by both her principal and peer/mentor evaluator at the end of the 2013-2014 school year. Respondent, for each of the evaluations performed during the 2013-2014 school year, received identical marks for the Domain 3 components, with the same deficiencies noted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(g), Respondent be prohibited from applying for a new certificate for a period of at least five years. DONE AND ENTERED this 28th day of June, 2017, 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 28th day of June, 2017.
