The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Emmamaria Silva, currently holds Florida teaching certificate number 466263, covering the areas of early childhood education and elementary education, which is valid through June 30, 1994. Respondent has been employed as a teacher by the Dade County School District since 1980, and was so employed at all times pertinent to these proceedings. During the 1990-91 school year, respondent was employed as a kindergarten teacher at South Miami Heights Elementary School and taught English for Speakers of Other Languages (ESOL). Such class was designed to immerse the students in the English language through intense visual and auditory stimulation, and demanded of the teacher strong demonstrative or acting skills in addition to sound educational skills. Essentially, a teacher, such as respondent, would "bombard" the students with the English language and through various techniques, including demonstrations, achieve a level of comprehension without resort, if possible, to the children's native language. Necessarily, such a teacher, as respondent, is quite animated and demonstrative during the course of the program, and must evidence a caring and conscientious attitude. Here, petitioner charges that during the 1990-91 school year respondent used inappropriate techniques or physical force to discipline or control her students. With minor exception, the proof fails to demonstrate any significant transgression. First, petitioner charges that respondent "tied up" many students to a chair as punishment. In this regard the proof does demonstrate, with regard to the students Eric Lluis (Eric), Adrian Gonzalez (Adrian), Alexander DuQue (Alexander), Frankie and Yency, that the respondent did, on at least one occasion during the school year, wrap a jump rope around their chest and upper arms, as they were seated in their chair with their arms at their side. The rope was not, however, tied, but wrapped so loosely that it did not significantly restrain them. Such demonstrative act on respondent's part was responsive to those students moving away from their desks or walking around when they should have been seated and paying attention to her instruction. Apart from Adrian "feeling sad" because of his experience, none of the other students expressed any adverse reaction to respondent's action, and none were harmed. Apart form the foregoing, there is no proof that respondent ever "tied up" a student, with one exception. In this regard the proof demonstrates that on one occasion she bound Eric to a chair momentarily in response to his having "tied up" Adrian. According to respondent, she used such technique, and explained her action to Eric, to demonstrate the impropriety of his conduct. In her proposed recommended order respondent concedes, on reflection, that such action was not an appropriate method of discipline. Finally, petitioner charges that at some point during the 1990-91 school year respondent hit Eric and Adrian with her shoe, put soap in the mouths of Eric and Adrian for using "bad words," and put tape on the mouths of some students. The proof offered at hearing regarding these incidents failed, however, to reasonably explicate the circumstances surrounding the incidents, was vague and at times conflicting, and lacked sufficient detail from which a conclusion of impropriety could clearly be drawn. For example, regarding the accusation that respondent hit Eric and Adrian with her shoe, Adrian denies having been hit and no proof was offered regarding the circumstances surrounding the occasion Eric was purportedly hit to show how he was hit, why he was hit, or how hard he was hit. With regard to the accusation that respondent put soap in the mouths of Eric and Adrian for using "bad words," neither of these students was asked about the incident at hearing and the proof offered was less than compelling. Finally, with regard to the accusation that respondent put tape on the mouths of some students, the proof fails to identify such students or to demonstrate when, where, how or why such event occurred. Under such circumstances a conclusion of impropriety cannot clearly be drawn, and respondent's testimony that she never engaged in such punative conduct is credited As a consequence of the Dade County School District's investigation into the matter, respondent has received a letter of reprimand for using inappropriate disciplinary techniques on a student, and counseling regarding inappropriate disciplinary techniques. Apart from the incidents in this case, respondent has received satisfactory performance evaluations, and she continues to teach at South Miami Heights Elementary School without apparent further incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating the provisions of Section 231.28(1)(h), Florida Statutes, and Rule 6B- 1.006(3)(a) and (e), Florida Administrative Code, as heretofore found, dismissing all other charges against respondent, and imposing the penalty set forth in paragraph 12, supra. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of April 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April 1993.
Findings Of Fact The Petitioner is a governmental agency charged, in pertinent part, with employing instructional personnel such as the Respondent for the purpose of teaching students enrolled in the public schools, over which it has supervisory authority through its Superintendent, Mike Holloway. The Petitioner is charged with regulating the professional conduct of instructional personnel such as the Respondent and enforcing the appropriate statutory and regulatory standards pertaining to the professional conduct required of instructional personnel. The Respondent, James Martin, has been a teacher in the school district of Escambia County since 1971. All of this instructional time was spent at Ransom Middle School. The Respondent taught for one year prior to that time at Aliceville, Alabama. During times pertinent hereto the Respondent was a sixth grade science teacher at Ransom Middle School, and the sole complaining witness herein, Kim Lee, was a student in his science class. The Respondent has never been accused of any professional misconduct in the past. The Respondent was notified of the charges against him by the dismissal letter of Mike Holloway, the Superintendent of Schools for Escambia County, dated March 7, 1986, and the later Petition for Dismissal dated July 11, 1986, in which it is charged that the Respondent committed a lewd and lascivious assault upon a child on or about March 19, 1985, which resulted in his arrest on that charge. Both the letter notice of dismissal and the petition referenced the arrest report in that criminal action and incorporated that arrest report in the petition. Thus, the specific factual allegations embodied in the charges against the Respondent are contained in the arrest report incorporated in the petition. That report indicates that on February 7, 1986, the victim, Kim Lee, gave a video recorded statement to a "child protection team." That complaining witness alleged that in March 1985 her class was in the library at Ransom Middle School, at which time she advised that the Respondent approached her from the rear, put his arms around her with his hands on the area of her breasts, bent the upper half of her body over and rubbed his genital area against her genital area. Shortly after the alleged incident was finally reported by Kim Lee, which led to the Respondent's arrest, Kim Lee gave a video-taped interview to Ms. Sally Putters, a child protection team caseworker or interviewer (the record is not clear regarding her status). In this video-taped interview Kim Lee described the alleged incident in the library and indicated that the Respondent, in addition to placing his hands on her breasts, contacted her vaginal area. It is common practice, for interviewers such as Ms. Putters to have difficulty "drawing out" an accurate version from children and adolescents regarding such incidents due to their embarrassment and confusion about such matters. Ms. Putters therefore used two dolls in an attempt to get Kim Lee to accurately indicate where and how the touching occurred. In this interview Kim Lee repeatedly pointed to the front of the doll, which represented her body, in referring to where the Respondent's genital area allegedly contacted her. The arresting officer, Steve Purcell, however, recalled her description of the incident as involving the Respondent contacting her buttocks with his genital area. The student was later deposed and testified at the criminal trial involved in this matter and again gave conflicting accounts of how the incident was supposed to have occurred in a physical sense. This witness has, on one occasion, repeatedly indicated, by pointing to the doll for Ms. Putters, that the Respondent contacted the front part of her body and genital area. On another occasion she described the incident as occurring when the Respondent contacted her vaginal area while she was bent over at the waist and the Respondent approached her from behind. On still another occasion, in the course of her deposition and testimony concerning the criminal proceeding, she described the incident as occurring when she was standing near the librarian's desk in company with the other students, turned to leave the desk, slipped and was falling, whereupon the Respondent caught her, preventing her fall and contacted her breast and genital area in that manner and physical relationship. Finally, in addition to these varying descriptions of the supposed incident, witness Lee, after testifying on direct examination that the Respondent had approached her from behind, contacted her breasts with his hands, and contacted her vaginal area with his genital area, while she was bent over (and in the company of several other students), then gave a varying version of the events in later testimony. Thus she described the incident as occurring when she turned to leave the desk and fell and the Respondent caught her and contacted her breasts and genital or vaginal area. The Respondent denied all the allegations made by the student. The Petitioner attempted to adduce the testimony of other witnesses putatively to show that the Respondent had committed similar acts and had a proclivity for engaging in offensive touching of other students. No other such conduct was the subject of charges in the petition, however, and the Respondent had no notice of and an opportunity to prepare a defense against them. Accordingly, the "Williams Rule" was enforced pursuant to its codification in Section 90.404(2)(a) and (b), Florida Statutes, inasmuch as the Respondent had not raised a material fact issue concerning lack of intent or mistake in the manner in which the alleged conduct occurred, rather the Respondent categorically and continually denied that the alleged touching of the student occurred at all. The Petitioner had attempted to use the testimony of Deputy Purcell, to the effect that the Respondent speculated verbally that, had he touched the student in an offensive way, it would have been accidental or inadvertent, as raising the "issue" of lack of intent or mistake. In any event, the testimony of the proffered witnesses was not allowed because the Respondent had not raised inadvertence, mistake or lack of intent, rather it was the Petitioner's own attempt to show this through a prior out-of-court statement of the Respondent which statement in itself does not reflect that the Respondent ever admitted that the conduct itself had actually occurred, but rather was mere speculation that if he had ever touched the student it would have been without the intent to commit the act with which he is charged. Aside from this, no corroborating witnesses or evidence were presented to corroborate the equivocal, conflicting testimony of Kim Lee. This is especially noteworthy, since even Kim Lee testified that the alleged acts of the Respondent occurred in the immediate presence of other students around the librarian's desk. Further, the school librarian established that she only missed two days of work the entire year in question and that, had the incident occurred in the library as alleged, she would have been able to observe it. She saw no such incident nor had it reported to her by a student or any other person. She was never contacted by anyone, including any School District personnel, by way of inquiry as to whether she had any knowledge of or had observed any such conduct or the lack thereof. Deputy Purcell, the investigating officer, never contacted her at all. In fact, he never inquired of any potential witness or person with knowledge of any of the events in question other than the complaining witness, Kim Lee. This is noteworthy in view of the obvious multiple number of potential witnesses who were standing around the librarian's desk when the alleged event was supposed to have occurred according to Kim Lee's own testimony. Further, the testimony of Officer Purcell, who has substantial experience in estimating descriptions and heights of individuals, established that the Respondent is approximately a foot taller than the complaining witness was during her tenure in the sixth grade at the time in question, thus presenting another substantial reason why the acts allegedly committed by the Respondent were physically impossible. Finally, it should be pointed out that the testimony of Kim Lee is fraught with conflicts and failures to remember significant events or facts concerning what is supposed to have happened in the library on the day in question. The various testimonial statements of Kim Lee made during the hearing, the prior deposition and taped statement, concerning which she was questioned at hearing on cross-examination, revealed that she has given on various occasions at least three differing descriptions of how the supposed offensive touching was supposed to have occurred. Further, her own testimony establishes that she spent nine months in the hospital for a breathing difficulty involving hyperventilation, which she herself indicated was described by her attending physician to be emotionally based. Although she testified the emotional disturbance began with the supposed misconduct of the Respondent, she revealed upon cross-examination, that in earlier life she had been the victim of at least two incidents of sexual abuse by male adults in her environment, which might just as logically have been the origin of her emotional disturbance, which in turn may have greatly influenced the reason she testified as she did. The Respondent, for his part, established that he has a substantial hearing loss and must get especially close to some students to hear them. This is especially true of Kim Lee, who obviously has a very low, difficult to understand voice and manner of speaking. Respondent's witnesses also established that friendly hugs by teachers, such as an arm around the shoulders, a pat on the head and the like, are not only tolerated, but are an affirmative, positive part of school policy designed to help a teacher alleviate fears and. concerns of students who, in the middle school grades, often encounter difficulties in their development from childhood to adolescence. The emotional difficulties Kim Lee has experienced, coupled with the Respondent's physical requirement to get close to a student with a low voice in order to hear that student accurately, may have influenced Kim Lee's testimony to some extent in describing the offensive contact she maintains occurred. In any event, however, because of the complaining student's emotionally disturbed condition; the conflicting descriptions she has given at various times concerning the alleged conduct; the fact that it supposedly occurred around other students, none of whom were interviewed or testified; the fact that the librarian was in a position to know if it had occurred and never observed it or had it reported to her; and because the Respondent's testimony is credible and was corroborated by fellow teachers; it has simply not been proven that the conduct alleged by Kim Lee occurred at all. It is quite difficult to believe that this offensive conduct involving the Respondent's hands on the student's breasts and contact of his genital area with hers (if it were physically possible), would have occurred in the presence of a number of other students, some of whom would have been an approximate arm's length away. There has simply been no credible evidence adduced that the Respondent is guilty of or engaged in any acts of misconduct or immorality nor that any physical touching by the Respondent of this student occurred at all.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the petition filed by the School Board of Escambia County be DISMISSED and that the Respondent be reinstated and paid all back pay accrued during the time of suspension without pay. DONE and ORDERED this 28th day of November, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1986.
The Issue Whether Respondent, J & A Joyful Hearts Academy (Joyful Hearts), violated Florida Administrative Code Rule 65C- 22.010(e)1., resulting in the Class I and Class II violations alleged in the Administrative Complaint.
Findings Of Fact Joyful Hearts is a licensed daycare facility in Titusville, Florida. Jenail Martin is the director of the daycare, which has been open for approximately four years. Prior to the incidents giving rise to this case, Joyful Hearts had no disciplinary history with respect to its licensure. The Department is the state agency charged with the licensing and regulation of child care centers in the State of Florida. December 3, 2018 At approximately 6:00 a.m., on December 3, 2018, the Department received a report from the Florida Abuse Hotline, indicating that Jenail Martin struck M.H.2/ in the mouth with a spatula while M.H. was at Joyful Hearts. The reporting parent also indicated that a second child, J.M., was also hit by Ms. Martin with a spatula. M.H. was not at the daycare when the investigators went to Joyful Hearts, so they located him at his home. M.H. had a tiny cut on the side of his lip, as well as a pea-sized bruise. Barbara Smith interviewed M.H. as well as his mother, and based on statements he made about abuse toward other children, she interviewed a sampling of other children at Joyful Hearts. After interviewing M.H. and his mother, Tiffani Brown and Barbara Smith went to Joyful Hearts. For at least part of the day, they were accompanied by Lauren Watson, a detective with the Titusville Police Department. Detective Watson was present because the Titusville Police Department also received a complaint with respect to M.H. Upon arrival at Joyful Hearts, Ms. Brown and Ms. Smith spoke with Ms. Martin, who denied the charges against her. She claimed that M.H.’s mother was out to get her, and that M.H. and his friend were too busy bullying other children to fight each other. Ms. Smith and Ms. Brown interviewed some of the children present at the daycare, in order to see if M.H.’s injury was isolated or part of a pattern. Detective Watson was present during these interviews. Several of the children indicated that they were hit with a black shoe, a flip flop, or a belt, and that two of the children had been hit with a spatula.3/ All of the children indicated that J.M. got the brunt of the physical punishment. Ms. Martin was interviewed by Ms. Brown, Ms. Smith, and Detective Watson, and was wearing flip flops. She admitted having a belt and shoe that she kept in the kitchen, but denied hitting the children with them at Joyful Hearts. She stated that she would threaten the children with the belt and shoe, to keep them in line. She also stated that she sometimes kept J.M. in her home and claimed that she had permission from his grandmother to “pop” him when necessary, and did spank J.M., but that she only did so when keeping him at her home. Ms. Brown, however, testified that when she interviewed J.M.’s grandmother, the grandmother denied ever giving Ms. Martin permission to use corporal punishment with J.M. J.M.’s grandmother did not testify, and the conflicting statements by Ms. Martin and Ms. Brown regarding J.M.’s grandmother’s position are hearsay. There is no competent evidence to demonstrate whether Ms. Martin did or did not have permission to use corporal punishment on J.M., and no finding is made either way. Even assuming that Ms. Martin in fact had permission, use of corporal punishment at the daycare would still be a violation of section 402.305(12)(a)3., Florida Statutes, and Department rules. Shoshana Amores, a senior case coordinator for the CPT team in Brevard County, also interviewed M.H. and J.M. Ms. Amores has been trained to conduct interviews with children in order to ellicit details about what children have seen and experienced. The interviews are designed to establish a rapport with small children, and Ms. Amores generally spends some time determining whether the children are able to tell the truth, and to explain the rules. The questions Ms. Amores asked M.H. and J.M. were not leading or suggestive, and did not present as judgmental. The interviews were recorded in both audio and video form. Only the interview with J.M. is included in the record in this case. While the Department offered the video of J.M.’s interview as an exhibit in this case, it offered no evidence regarding J.M.’s availability to testify at hearing, and no evidence that requiring him to do so would result in a substantial likelihood of severe emotional or mental harm. Ms. Amores observed that M.H. had a small injury by his mouth. She reported that he was also examined medically, but it could not be determined whether the injury occurred as a result of being hit by a spatula or whether it was a result of M.H.’s fight with J.M. Based upon her interviews of the children, and the other evidence reviewed, Ms. Amores recommended that the staff at Joyful Hearts be retrained, and made a verified finding of abuse by history, in the absence of any observed injury to J.M. With respect to M.H., she also made a verified finding of abuse by history. Ms. Brown advised Ms. Martin to stay away from the daycare until the investigation was completed. This directive was not in written form; she was simply advised that Department staff would call her when the investigation was complete. As a result of the December 3, 2018, visit to the daycare, Joyful Hearts was issued an Inspection Checklist that indicated noncompliance with section 2.8B of the CCF Handbook related to child discipline (section 9, number 4), a Class II violation; and use of corporal punishment at the daycare, in violation of section 2.8A (section 9, number 2) of the CCF Handbook, a Class I violation. The same conduct was also the basis for a finding of a Class I violation by Department staff by the commission of an act that meets the definition of child abuse or neglect provided in chapter 39 or 827, Florida Statutes. Detective Watson also presented a capias to the State Attorney’s Office for child abuse. However, the State Attorney’s Office elected not to file charges. Ms. Martin acknowledged that she was advised to stay away, but that she did not. She testified that when she did not hear from Ms. Brown, she assumed it was all right for her to return to the daycare, and did so. Ms. Martin’s belief, while perhaps sincere, makes no sense in light of the directive to stay away until she was called and told it was okay to return. January 4, 2019 Ms. Brown and Ms. Smith returned to Joyful Hearts on January 4, 2019, and found Ms. Martin working. At that time, they issued her a “restriction letter,” advising her that she could not be on the premises of the daycare until the investigation was complete.4/ According to Ms. Brown, the letter restricted Ms. Martin from being at the facility during working hours. While by her own admission, Ms. Martin spent time at Joyful Hearts before and after business hours after issuance of the restriction letter, there is no persuasive evidence that she was thereafter present at Joyful Hearts during working hours. When Ms. Brown visited the facility that day, Belle Lewis was working there and appeared to be in charge. Ms. Brown had received telephone calls stating that a man named Timothy Watkins was working at the daycare, so she asked Ms. Lewis whether he had been working there. Mr. Watkins has an extensive criminal history that would prevent him from working with children. While Ms. Brown testified that Ms. Lewis told her that Mr. Watkins had been at the facility picking up trash, Ms. Lewis did not testify, and her statement to Ms. Brown is hearsay. No testimony was offered that Ms. Brown or any of the other Department staff saw Mr. Watkins there, much less saw him working with any children at Joyful Hearts. Moreover, no evidence was presented that Mr. Watkins was actually an employee of Joyful Hearts. Ms. Martin testified credibly that he was an employee of a vendor that she used for maintenance. Her testimony was corroborated by other witnesses at hearing. When Ms. Brown arrived at Joyful Hearts on January 4, 2019, there were three children on the playground on Joyful Hearts’ property. These three children were unattended. The evidence was not clear and convincing, however, that these three children were children for whom Joyful Hearts had any responsibility. While Ms. Brown testified that Ms. McCray claimed they were her grandchildren, Ms. Brown’s notes in Petitioner’s Exhibit 5 indicate that Ms. Lewis, as opposed to Ms. McCray, stated that the three children were her grandchildren, dropped off by her niece. Moreover, Ms. McCray denied having any grandchildren. In any event, the evidence as a whole suggested that these children were school-aged children as opposed to children attending the daycare, and would not be part of the ratios the daycare was required to maintain. There were, however, other problems at Joyful Hearts. The people present and working with the children on January 4, 2019, were Ms. Lewis and Ms. Angela McCray, as well as Ms. Martin before she was asked to leave. Ms. Brown asked Ms. McCray if she had been screened and she indicated that she had. Ms. Brown could not find any evidence that Ms. McCray had been screened at the facility, and asked her what she did to get screened. Ms. McCray responded that she “took a pee test (as opposed to being fingerprinted).” After checking Department records, Ms. Brown asked Ms. McCray to leave the daycare because she had not been screened. Laura Hair, a former employee who would substitute when needed, came in to replace Ms. McCray. At hearing, Ms. McCray claimed that she did not believe she needed to be screened, because she was a “board member” for Joyful Hearts. She also testified that she was quite experienced in the daycare area, having owned a daycare in the past. At the time of hearing, she stated that she had since been screened. When asked if she was eligible to work, she stated that she had “something” from 22 years ago, but her “clearance was in the works.” Ms. McCray’s claim that she did not know she needed to pass a background screening in order to work with children is not credible. Moreover, Ms. Martin acknowledged that Ms. McCray had not been screened when Ms. Martin asked her to come and help out at the daycare, but claimed that there were extenuating circumstances. It is found that Ms. McCray had not undergone background screening and that Ms. Martin asked her to work with children knowing that she had not undergone screening. Even assuming that both teachers present were properly screened, Joyful Hearts did not have the proper ratio when Ms. Brown visited on January 4, 2019. At the time she was there, there were 11 children in one room, and one of those children was an infant. The age of the other children is unknown. When there is an infant present, the appropriate ratio is one adult for four children, even if there is only one infant, requiring at least two properly screened employees to be present to meet ratio. As is discussed below, Ms. Lewis was not eligible to work with children. January 11, 2019 DCF’s concerns that Ms. Martin was not complying with the restriction letter continued. Her car was seen at Joyful Hearts during the day, so on January 11, 2019, Ms. Brown returned early in the morning before Joyful Hearts opened and parked across the street from the daycare to see if Ms. Martin was there. Ms. Brown saw Ms. Martin’s car and there were lights on at the facility, but she did not see Ms. Martin. Within the hour, Belle Lewis came and knocked on the door, and someone let her inside. Ms. Brown did not see who. At approximately 7:00 a.m., children started coming to the daycare. Among the children present was a child brought by someone who at that point was identified as “Annie Pittman.” She went inside with the child, and after a while came outside with Belle Lewis to Ms. Lewis’s car. Both women coming out of the building meant that, to the best of Ms. Brown’s knowledge, there were no adults left in the daycare to supervise the children inside. Ms. Brown confronted Ms. Lewis and the woman she believed to be Annie Pittman. “Ms. Pittman,” who Ms. Brown believed to be a parent, just smiled and walked across the street. At around 9:10 a.m., Ms. Brown went into Joyful Hearts and checked worker/child ratios. At that time, “Ms. Pittman” was in the infant room with one infant. Ms. Brown asked “Ms. Pittman” if she had gone through background screening and was told that “Ms. Pittman” had been screened in Rockledge. The office door for the facility was locked, and records to substantiate background screening could not be located. When Ms. Brown checked ratios, there were eight children of mixed ages with two teachers, including Ms. Lewis. When Ms. Brown asked Ms. Lewis who was with the children when she went outside with “Ms. Pittman,” Ms. Lewis said she left the children inside so that she could give “Ms. Pittman” some money to buy hotdogs to feed the children. When asked if there were any other adults, Ms. Lewis acknowledged that she was alone. Leaving the children unsupervised meant that there were ratio violations, with no adults for three children. After the visit on January 11, 2019, Ms. Brown checked on the background screening for Belle Lewis. She discovered that Ms. Lewis had gone through background screening on May 31, 2018, but was declared ineligible on June 5, 2018, because she had multiple drug offenses from 1993 through 1995 that disqualified her from working in positions of trust. Ms. Lewis was notified that she was ineligible on June 5, 2018, and advised of the process to seek an exemption from disqualification. She applied for an exemption, but was advised by letter dated November 2, 2018, that she was ineligible because court records indicated that she still had outstanding fees due. January 14, 2019 In light of the discovery that Ms. Lewis was ineligible to work with children, Ms. Brown and Ms. Smith, accompanied by a police officer from the Titusville Police Department, returned to Joyful Hearts on Monday, January 14, 2019, for what had to be one of the most memorable and bizarre days in their careers. The trio arrived at Joyful Hearts at approximately 8:15 a.m., and they were met by “Annie Pittman,” who was reluctant to let them in the building. “Ms. Pittman” was asked if she was teaching, and she responded that she was. She was also identified as an employee of Joyful Hearts by another employee, Willa Mae Hair. “Ms. Pittman” was also asked if she was background-screened as of January 11, 2019, and she stated that she was, but would not give her date of birth. The woman identified as Annie Pittman was a young woman in her twenties. The only person in DCF’s system with that name that had been screened was born in 1970. After being confronted with this information and having some discussion with the police officer, “Annie Pittman” admitted that her name was actually Mercedes Daughtry. On February 20, 2017, Ms. Daughtry pled nolo contendere to the third-degree felony of organized fraud to obtain property less than $20,000, in violation of section 817.034(4)(a)3., Florida Statutes, in the Eighteenth Judicial Circuit, in and for Brevard County. Ms. Daughtry was sentenced to 60 months of probation. This offense disqualifies her from working at a daycare. Upon discovery of her criminal history, Ms. Daughtry was asked to leave the facility. DCF staff also confronted Ms. Lewis, who acknowledged that she knew she was disqualified from working with children. DCF staff advised her that she could not stay at Joyful Hearts. Ms. Lewis called Ms. Martin to notify her that she had to leave. With both Ms. Lewis and Ms. Daughtry gone, no staff employed by Joyful Hearts was present to take care of the children at the facility. Ms. Brown advised Ms. Martin by telephone that she needed to call the parents and ask them to pick up the children, as there was no one to care for them. Ms. Martin said that she had someone coming in at 9:00 a.m. Ms. Brown reminded her that she would still be out of ratio, given the number of children present. Ms. Martin said she had someone coming in the afternoon as well, but even if true, that would not address the immediate problem of insufficient staff. At 9:00 a.m., Willa Mae Hair came to Joyful Hearts to work in the baby room.5/ She sat down until several of the parents had picked up their children. When there were only three children left, Ms. Hair stated that she was leaving, and she would take one of the children with her, leaving the DCF staff with the other two. Ms. Brown would not allow her to take the child, because Joyful Hearts is not a transporting facility, and she did not believe that Ms. Hair was on the list of approved individuals allowed to pick up the child. Tanisha Whitehead, the child’s mother, came to pick up the child, but was frustrated that Ms. Hair was not allowed to bring her home. Ms. Whitehead testified that the list of people approved to pick up her child could not be found, but that Ms. Hair was on it. She felt that DCF staff was disrespectful and would not provide any real explanation of what was going on. The pick-up list was not offered into evidence by either party, so whether Ms. Hair was on the list is unknown at this point. It is understandable that parents would be upset at having to come get their children because the daycare was not properly staffed. The issue here, however, is not whether Ms. Hair was on Ms. Whitehead’s list of approved adults for pick-up, but rather, the fact that her leaving the facility meant there were no employees there to care for the remaining children. Ms. Smith and Ms. Brown prepared lunch for the children and remained at Joyful Hearts until approximately 11:45, when the last two children were picked up for the day. They checked the facility to make sure that no one remained, and then left. Joyful Hearts closed as of January 15, 2019, and was not open as of the date of the hearing. Ms. Martin’s Defenses Ms. Martin testified on her own behalf and her statements have been carefully considered, given the gravity of the allegations against Joyful Hearts. Ms. Martin admitted that she has spanked J.M., but insists that she has only done so in her home when she has kept him in the evenings or on weekends. This claim is not credible, given her admission that she kept a belt and spatula at the daycare in order to keep the children in line. Moreover, while the statements of other children have not been considered for the truth of those statements, it is illogical that the other children would know of any spankings occurring at Ms. Martin’s home as opposed to something happening in their presence at the daycare. Ms. Martin admitted to going to the daycare before receiving the restriction letter. She stated that after receiving the letter, she would go into the daycare before and after hours to clean up and set things up for the day. Given that the restriction letter was not offered into evidence, and Ms. Brown’s testimony that she could not be there during hours Joyful Hearts was open, it appears that Ms. Martin being there when the daycare was closed would be permissible. Ms. Martin also admitted that while she was absent, she kept the door of the office locked, but put the books with records in a chair, upside down outside the office. Neither party offered evidence that DCF staff asked Ms. Martin for the whereabouts of the records and that she refused to provide them. Given that she was not allowed to be at the facility when the DCF staff was there, it would be incumbent upon them to inquire of her where to locate any records that they needed. DCF presented no evidence that its staff inquired, so Ms. Martin cannot be faulted for not providing the appropriate records. Ms. Martin claimed that Mercedes Daughtry was a volunteer as opposed to an employee, and that she would volunteer when they were short of staff. This claim is not credible. Ms. Daughtry was in the daycare at times when no other adult was present in the room where she was located, working directly with children. She was identified as an employee of the daycare by another employee. It is found that Ms. Daughtry was teaching at Joyful Hearts without proper screening. Even if she did volunteer when they were short of staff, she was working unsupervised by a screened employee, which is impermissible. Ms. Martin acknowledged that Ms. Lewis was ineligible to work with children, but claimed that she was hired to be a cook. Given that on more than one occasion, she was one of the only workers present and was clearly supervising children, this claim is not credible. With respect to Mr. Watkins’ presence at the daycare, Ms. Martin testified that he was an employee of a vendor that she used, and was not employed by the daycare. Her testimony is consistent with others who testified, and moreover, no one testified seeing Mr. Watkins interacting with children or working near them. The only testimony placing Mr. Watkins on the premises of the daycare was hearsay. Ms. Martin acknowledged that she knew Ms. McCray was not screened when she asked her to pitch in at Joyful Hearts, but felt there were extenuating circumstances. She also claimed that some of her workers did not show up for work because Ms. Brown told them if they came to work, they would go to jail. However, no person to whom Ms. Brown allegedly made this extraordinary statement testified, and no one asked Ms. Brown if she had made such a statement. Without someone with first-hand knowledge testifying to it, the statement is hearsay that cannot be considered. Even if true, if there are not enough screened employees to meet ratios for the care of children, the proper course of action is not to bring in unscreened people, but to close until properly screened workers can be retained.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of five Class I violations and two Class II violations. It is further recommended that Respondent be fined a total of $1,350.00 ($250 for each Class I and $50 for each Class II), and that its license to operate as a daycare facility be revoked. DONE AND ENTERED this 19th day of June, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2019.
The Issue The issue in this case is whether, pursuant to section 1012.33(1)(a), Florida Statutes (2013), Petitioner has just cause to dismiss Respondent for the violations alleged in the Notice of Specific Charges served on April 22, 2014.
Findings Of Fact Petitioner has employed Respondent as a teacher since 2007. Until this incident, Respondent has not previously received any adverse employment action during her teaching career, which has been exclusively with Petitioner. Initially, Respondent worked as a first-grade general education teacher at Liberty City Elementary School. For her second year at Liberty City, Petitioner assigned Respondent to teach a pre-kindergarten special education class, which contained 12-14 students. Four students were general education students, and the remaining students received special education under a variety of eligibilities. Petitioner assigned Respondent a mentor, and Respondent later earned a certificate in special education. Respondent taught special education classes at Liberty City for the next four school years through June 2013. The special education program, of which Respondent was a part, was transferred from Liberty City to Crowder Early Childhood Diagnostic and Special Education Center (Crowder) for the 2013-14 school year. ** was not among Respondent's students at the start of the 2013-14 school year. About three weeks after the school year started, ** transferred into Respondent's classroom. **’s individual education plan states that its eligibilities are Autism and Emotional/Behavioral Disorder. **'s behavior was volatile in class, and ** would scream and throw itself onto the floor when it did not get its way. To avoid lunchroom disruptions, shortly after **'s arrival, Respondent obtained the approval of her principal to eat lunch in the classroom with ** and another student who did not tolerate the lunchroom well. On October 2, 2014, 12 students were in Respondent's class. Four students were general education students, and the remaining students were special education students. A paraprofessional assisted Respondent from 8:30 a.m. to 11:30 a.m. each day, including the day in question. Before lunch, Respondent was teaching reading with the students seated on the floor in a circle. Respondent's class occupied a large pod, which was divided into two classrooms by shelves, not a door. On the other side of the shelves was an Autism Spectrum Disorder class. Respondent's side of the pod contained small tables and easels, an art area, a long table, and a puppet theater that doubled as a safe place for students needing a time-out. Relative to the front door leading to the hallway, Respondent and her students were at the far end of the classroom, which Respondent estimated to be at least 20-23 feet from the door leading to the hallway. At some point, ** tried to situate itself next to ##, who generally kept to itself and tried to move away from **. Respondent intervened by telling ** to sit next to her. ** instead threw itself down on the floor in close proximity to the rear wall of the classroom and began flailing about. Fearing that ** would injure itself, Respondent kneeled beside ** and secured its hands. In a few moments, ** calmed down, and Respondent was able to resume instruction. Given these facts as a hypothetical, the principal testified that a teacher taking these actions would not violate any of Petitioner's policies. Following the incident, nothing appeared out of the ordinary. As was her custom, Respondent had lunch with ** and the other child in the classroom. After lunch, ** was removed from the class, and Respondent was summoned to the office where the principal, in the presence of a law enforcement officer, informed Respondent that she had been observed striking **. Unknown to Respondent, as she was holding **'s hands down, the secretary/treasurer of Crowder, who had been a classroom teacher, had entered the front door of the classroom to give Respondent some papers that Respondent needed to sign. The secretary/treasurer testified that, over the course of "a couple of seconds," she saw Respondent kneeling beside **, holding it down with her left hand, and striking it with the other hand on its forearm and sides. With each strike, according to the secretary/treasurer, Respondent raised her right hand to shoulder height before striking the crying child, who was not struggling. The most immediate problem with the secretary/treasurer's version of events is her claim that she had an unobstructed view of the incident. This claim is untrue. The other students, who were seated in a circle at the far end of the room, were between the secretary/treasurer and Respondent and **. More importantly, the secretary/treasurer's version of events does not make sense given her muted reaction. Seeing a teacher striking a passive, crying child hard four times, the secretary/treasurer did not intervene to halt this child abuse. Nor did she immediately return to the office to inform the principal or call the police. Instead, by her own testimony, she exited the classroom, proceeded to a nearby classroom where she delivered to another teacher a paper that needed to be signed, and returned to the front office about four minutes after the incident had taken place. Once in the office, the secretary/treasurer still did not immediately report the incident as she described it in her testimony. Instead, she suggested that the principal conduct a teachers' meeting to remind the teachers of approved methods of discipline. When the principal asked why she should do so, the secretary/treasurer recounted the version to which she testified. The improbabilities and implausibilities in the testimony of the secretary/treasurer preclude assigning it any weight. The striking of any student is unequivocally prohibited by Petitioner's policies. The striking of a very young student with special education disabilities that would be associated with disruptive behaviors would represent a more egregious violation of these policies. The actions of the secretary/treasurer after the incident are inexplicable--unless, at the time, she was unsure of exactly what she had seen or knew that she had seen an incident more in line with Respondent's description. Further undermining the testimony of the secretary/treasurer concerning the incident, which involved four blows of the hand swung from shoulder height, ** was examined later on the same day and bore no marks.
Recommendation It is RECOMMENDED that The School Board of Miami-Dade County, Florida, enter a final order dismissing the Notice of Specific Charges and, if Respondent has been suspended without pay, reinstating her immediately with back pay. DONE AND ENTERED this 22nd day of July, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2014. COPIES FURNISHED: Cristina Rivera Correa, Esquire Miami-Dade County School Board Suite 430 1450 Northeast Second Avenue Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19, North, Suite 110 Post Office Box 4940 Clearwater, Florida 33761 Pam Stewart Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1308
The Issue The issues are whether Respondent failed to maintain a record of major incidents on two occasions, and if so, what penalty should be imposed.
Findings Of Fact Petitioner regulates assisted living facilities (ALFs) pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. Respondent is licensed as an ALF pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. On or about October 4, 1999, Petitioner received a telephone call alleging that Respondent was operating contrary to Rule 58A-5, Florida Administrative Code, in several respects. In response to the telephone complaint, Petitioner performed an unannounced inspection/survey at Respondent's facility on October 6, 1999. Petitioner performed record reviews, interviews, and observations during its October 6, 1999, inspection of Respondent's facility. The survey revealed that Respondent's business was deficient in several respects that are not relevant here. These deficiencies resulted in four citations. On November 10, 1999, Petitioner completed a follow-up appraisal/complaint investigation at Respondent's facility. During the survey, Petitioner reviewed randomly selected medical records of eight of Respondent's clients. The November 10, 1999, revisit resulted in Respondent being cited for several Class III deficiencies. The deficiencies included one citation for failing to maintain a record of a major incident involving an injury to a resident who required treatment by a health care provider. Specifically, Resident No. 5 fell on October 22, 1999, and fractured a leg. She was transferred and admitted to the hospital. At the time of the November 10, 1999, inspection, Respondent could not produce documentation indicating that it had completed a major incident report. Petitioner advised Respondent that it had until November 24, 1999, to correct cited deficiencies. On December 20, 1999, Petitioner conducted a revisit survey of Respondent's facility. The purpose of the inspection was to determine whether Respondent had corrected deficiencies cited during the November 10, 1999, inspection. This inspection included a review of medical records for eight randomly chosen residents. The December 20, 1999, survey revealed a repeat deficiency for failing to complete a major incident report of an injury to a resident who required treatment by a health care provider. Petitioner cited Respondent for failing to complete a major incident report for Resident No. 7 who fell on or about August 1, 1999. Resident No. 7 fell in her room but refused initially to go to the hospital. Two days later, Resident No. 7 was admitted to the hospital for observation due to her complaints of pelvic pain. She returned to Respondent's facility with a new health assessment dated August 3, 1999. The new health assessment revealed a decline in the resident's ability to perform daily living activities and changed her status from independent to requiring supervision in dressing, grooming, toileting, and transferring. Respondent did not complete a major incident report at the time of the resident's fall or upon her admission to and return from the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $300 for repeated violations of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 2nd day of May, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Mohamad Mikhchi Owner/President Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32514 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue The issues presented are whether Respondent committed the acts alleged in the Administrative Complaint and by doing so violated Sections 1012.795(1)(d), 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes (2008),1/ and Florida Administrative Code Rule 6B-1.006(3)(a), (e) and (f). If one or all of the violations alleged are proven, what penalty would be appropriate?
Findings Of Fact Respondent is licensed as a teacher in Florida, and has been issued Florida Educator's Certificate 449960. Her certificate covers the area of mentally handicapped, and expires June 30, 2013. During the 2008-2009 school year, Respondent taught at Chaffee Trail in Duval County, Florida. She was assigned as an exceptional education teacher in a self-contained classroom for trainable mentally handicapped students in the first through third grades. Respondent generally had eight to eleven students in her class, and was aided by a paraprofessional, Julie Brooke. Respondent's classroom was on the first-grade hallway. One of Respondent's students was a nine-year-old named C.L. C.L. was a thin, frail, African-American student who, at the time of the incidents giving rise to these proceedings, was approximately four feet, four inches tall and weighed approximately 60 pounds. He was described as very low functioning, with an IQ in the 40's. Despite his significant limitations, C.L. was an active, friendly child who had a tendency to wander and needed redirection. His IEP included specific strategies for dealing with behavior problems in the classroom. Ms. Brooke worked with C.L. daily and he often sat at her desk to work on his assignments. They got along well together. November 18, 2008 On November 18, 2008, there were only four or five students in Respondent's class, because a number of students were absent. That morning, Ms. Brooke took another student to the office because he had been misbehaving. On her way back to Respondent's classroom, she heard loud voices and screaming coming from Respondent's classroom and recognized the voices as those of Respondent and C.L. When she entered the classroom, Ms. Brooke saw Respondent sitting in an office chair, holding C.L. face down on the floor with both of his arms twisted behind his back. Respondent appeared to be pushing C.L. down so that his face and body were pressed against the floor. C.L. was screaming and crying and appeared to be frightened. Ms. Brooke walked over to her desk and sat down. C.L. wanted to go over to Ms. Brooke, but was not allowed to do so. Respondent let him get up, but pinned him into the corner of the classroom near the door, by hemming him in with her chair. Respondent was facing C.L. and pressing the chair against his body, while he continued to scream and cry. About this same time, Assistant Principal Wanda Grondin received a call from a substitute teacher in another classroom on the first-grade hallway, complaining that there was yelling going on that was disturbing her classroom. Ms. Grondin went to the first-grade hallway, and could also hear yelling that was coming from Respondent's classroom. As Ms. Grondin approached the classroom, the yelling stopped. As she entered the room, she saw Respondent sitting in the office chair, with C.L. pinned in the corner of the room, held there by Respondent's chair. C.L. was crying and fighting back. Respondent indicated that he had refused to do something and she was trying to calm him down to give him options. Upon Ms. Grondin's arrival, Respondent slid her chair back, and C.L. fell into Ms. Grondin's arms, crying. Respondent told C.L. that he could now go to Ms. Brooke. C.L. went to Ms. Brooke and she comforted him and gave him some work to do. Later in the day, Ms. Brooke reported to Ms. Grondin that another child in the classroom, M.C., had reported to Ms. Brooke that Respondent had twisted C.L.'s arm and had locked him in the closet in the classroom. Although there was testimony presented regarding conversations that Ms. Grondin, the principal and the guidance counselor had with M.C., and his description of what allegedly happened to C.L., neither M.C. nor any other person who actually witnessed C.L. being locked in the closet testified at hearing. December 16, 2008 Brian Harvell is a first-grade teacher whose classroom is across the hall from Respondent's. On December 16, 2008, he was in his classroom when he heard loud voices and banging noises. Mr. Harvell walked out into the hallway and saw Respondent with C.L., struggling in the doorway. Respondent had her back against the doorframe, and one arm around D.L.'s torso and one of C.L.'s arms twisted behind his back. Mr. Harvell approached Respondent and C.L., and she stated, "Look what's happening in my classroom." When he looked past her, it appeared that a desk had been turned over. C.L. was squirming and crying out while Respondent restrained him. At that point, Mr. Harvell stated, "C.L., come to me." Respondent released C.L. and he walked over to Mr. Harvell, who took him to his classroom. In the classroom, he showed him a carpeted area and a toolbox full of cardboard books. C.L. sat and played quietly for approximately 15-20 minutes, until Ms. Brooke came for him. Mr. Harvell reported the incident to Ms. Grondin. It is not appropriate to control a student by twisting his arm behind his back, pinning him into a corner, or pushing his face toward the floor. It is especially inappropriate to subject a small, frail, mentally handicapped child of C.L.'s size and capacity to such methods of restraint. Respondent was removed from Chaffee Trail on December 19, 2008, as a result of the incidents involving C.L. Her employment with the Duval County School District was terminated in February 2009. The allegations against Respondent were reported in both the print and broadcast news media. The incidents in question also prompted complaints to be filed with the Department of Children and Family Services, and investigations were conducted by DCFS to determine whether there were indicators for child abuse. However, the investigations by DCFS do not address violations of professional standards governing teachers, and the findings are a result of evidence that is different from that presented at the hearing in this case.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Subsections 1012.795(1)(d),(g) and (j), Florida Statutes, and Florida Administrative Code Rules 6B-(3)(a),(e) and (f), and permanently revoking her certificate. DONE AND ENTERED this 24th day of November, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2010.
The Issue Whether Respondent committed the acts alleged in the Administrative Complaint filed with DOAH on March 21, 2012, and, if so, the discipline that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Monroe County, Florida. At all times relevant to this proceeding, Respondent has been an ESE teacher employed by Petitioner pursuant to a professional services contract. Prior to the incidents that are the subject of this proceeding, Respondent has not received any disciplinary action. Respondent has been an ESE teacher employed by Petitioner since 2005. The 2011-12 school year was her first year working with kindergarten through second grade students. Respondent worked with ESE students both in the regular classroom setting, where she works one-on-one with a student, and in situations where she removes students from the regular classroom and works with one or more students in a separate classroom. Charity King (Ms. King) is a kindergarten teacher in one of Petitioner's elementary schools (the subject school). Respondent was assigned to the subject school for the 2011-12 school year, which was her second year as a teacher. Ms. King's class consists of 16 kindergarten students, one of whom is the Student. The Student is a five-year-old female with special needs. The Student has been diagnosed with a form of autism known as Pervasive Developmental Disability Disorder, Not Otherwise Specified. The Student is high functioning intellectually, but she has trouble verbalizing and is easily distracted. She sometimes screams, pushes others (including her teacher), and becomes defiant. Periodically, she has tantrums. The Student's father is a school psychologist employed by Petitioner. The Student's mother is an ESE staffing specialist in the subject school. Both the father and the mother are very involved with their daughter's education. Respondent testified, credibly, that she communicated daily with the Student's parents and that she had developed a good rapport with the Student. Respondent also testified, credibly, that she is philosophically opposed to becoming physical with any student. Ms. Rollason has worked with Respondent on a daily basis since August of 2006. During that time, Ms. Rollason has never seen Respondent be physically inappropriate with a child, Respondent lose her temper with a child, or do anything inappropriate with a child.2/ On December 7, 2012, Respondent provided one-on-one services to the Student in Ms. King's classroom. Ms. King taught her other students during that day. On December 16, Ms. King reported to Ms. Diaz, the assistant principal at the subject school, that on December 7 she had witnessed Respondent spank the Student on one occasion, at which time she administered two blows.3/ Ms. King testified that on a scale ranging from a low of 1 to a high of 10, each of the two blows administered to the Student would have been a 7. Ms. King testified at the formal hearing that she first discussed the spanking incident with Respondent on December 15. Ms. King testified that during that conversation, Respondent tacitly admitted spanking the Student by nodding her head and making a spanking motion. Respondent testified that she met with Ms. King to discuss target groups, which included a general discussion about the Student. Respondent denied that the subject of spanking was discussed, and she denied making any spanking motion Ms. King testified that other than the conversation she had with Respondent, she did not discuss the alleged spanking incident with anyone at the school, including the Student's mother, until December 16, when she talked to Ms. Diaz. Ms. King did not confront Respondent on the day of the alleged incident. Ms. King does not know the approximate time of day the alleged spanking occurred, does not know what she was doing when the alleged spanking occurred, does not know where she was in the classroom, does not know where in the classroom Respondent and the Student were, and does not recall whether the Student cried or had any other reaction to the alleged spanking. Ms. King did not talk to the Student about the alleged spanking, and she did not check to see if the Student was hurt. Ms. King also testified that prior to December 7, she had seen Respondent mishandle the Student. Ms. King did not identify the time, date, or place of this alleged mishandling. Ms. King did not describe the acts that constituted the mishandling. Respondent testified, credibly, that she never mishandled the Student and did not know what Ms. King was referencing. On either December 17 or 18, Respondent was first notified of the allegation that she had spanked the Student. Respondent was totally surprised by the allegation. She had no idea what Ms. King was talking about. Over the course of the following days and weeks, Respondent tried to reconstruct the events of December 7. She could not recall any incident, and nothing in her notes from that day referenced any issue. Mr. Russell interviewed the other students in Ms. King's class on December 22. None of those students reported witnessing anything inappropriate on December 7. The Student's parents were not informed of the alleged incident until January, after the holiday break. Consequently, they were unable to discuss the incident with their daughter right after the alleged incident occurred. Since the first time she was confronted with the allegations, Respondent has maintained she did not hit, spank, or strike the Student on December 7. Respondent has also maintained that she never handled the Student in a rough manner. There is no basis in this case to credit Ms. King's testimony over that of the Respondent. While the undersigned finds Ms. King to be a sincere witness, her vague, uncorroborated testimony is insufficient to support a finding of guilt in this proceeding. Mr. Russell recommended that Respondent's employment be terminated. When he made that recommendation, he was unaware of Petitioner's progressive discipline policy. There was no other evidence that Respondent's effectiveness in the school system had been impaired by the alleged incidents.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Monroe County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order find Janet Faber not guilty of the violations alleged in the Administrative Complaint and reinstate her employment with back pay and appropriate benefits. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2012.
The Issue The issue in this case is whether there is just cause to terminate Paula Sinclair's employment with the Broward County School Board based upon the allegations made in its Administrative Complaint dated July 9, 2015.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Broward County, Florida. Article IX, Florida Constitution; § 1001.32, Fla. Stat. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Sinclair started her employment with Petitioner in 2007. She was employed as a guidance counselor pursuant to a professional services contract. Sinclair has a Florida Educator's Certificate and received a bachelor's degree in youth and community studies from Surrey University in England, a postgraduate diploma in social work and criminology from Middlesex University in England, and a master's degree in school guidance counseling from Nova University. Sinclair was a guidance counselor at Walter C. Young Middle School for the 2007-2008 school year. The following school term, 2008-2009 school year, Sinclair transferred to New River Middle School and held the position of a guidance counselor. 2009-2010 School Year Sinclair was placed at Indian Ridge Middle School ("Indian Ridge") for the 2009-2010 school year. She was assigned as the eighth grade guidance counselor. On August 3, 2009, Assistant Principal Michael Lyons ("Lyons"), and Busjit-Bhalil ("Busjit"), guidance counselor, met with Sinclair to explain her duties and responsibilities. Indian Ridge opened for the school year on August 25, 2009, and Sinclair started getting parent complaints about her performance. She also started making scheduling errors. On August 27, 2009, Sinclair had her first conference with Lyons. On August 28, 2009, Lyons had a second conference with Sinclair regarding her scheduling being taken over by Busjit because Sinclair was either not completing the work or the work was not timely done. On September 2, 2009, Lyons set a meeting for September 8, 2009, with Sinclair, Busjit, and Zagari to discuss Sinclair's job performance because Sinclair had made numerous mistakes. On September 3, 2009, Sinclair placed an eighth grade student in a seventh grade course. On September 11, 2009, Lyons met with Sinclair and outlined Sinclair's major areas of job performance concerns. Scheduling, poor communications with parents, inability to provide accurate information, and failure to read and respond to emails in a timely manner were addressed with Sinclair. Lyons set up a cycle of assistance to provide Sinclair the help she needed to bring her performance up to District level. Lyons also provided Sinclair training. He directed Sinclair to work with the following co-workers to get specific training in the different areas she needed improvement: Busjit, to review all guidance functions and duties, scheduling practices, procedures and protocols; Nancy Bourbeau ("Bourbeau") for TERMS1/; Susan Perless ("Perless") in regard to ESE students; Brown for best practices with parents and to read CAB system emails daily, as well as formulate a record-keeping system for phone communications. During the meeting, Sinclair responded by staring silently at Lyons. Sinclair was provided two weeks to correct the performance deficiencies. On September 15, 2009, Lyons followed up the meeting discussions from September 11, 2009, with a memo to Sinclair outlining the serious concerns regarding her job performance. The memo deemed the following areas substandard: Students being placed in double reading classes that are not designed for being double blocked. Placing 8th grade students in 7th grade classes. Placing advanced students in regular education classes. Providing only 5 courses for students when they should have 6 courses. Wrong team designations on student schedules. Incorrect course and section numbers on student schedules. Interacting with parents in a curt manner. Failure to return phone calls from parents. Providing wrong or inadequate information to parents. Failure to follow direction in formulating a new algebra class. Failure to notify impacted teachers of schedule changes. Failure to process schedule changes in a timely manner. Failure to open and read emails in a timely manner. A general lack of "Withitness" in regard to school matters. On September 15, 2009, Busjit started Sinclair's training on TERMS panels. She reviewed the differences among the intensive reading classes and processes for accessing the server and database. On September 16, 2009, Bourbeau, data management specialist, trained Sinclair on TERMS and scheduling. Bourbeau went through every panel guidance counselors needed to know and discussed the procedures of a schedule change, as well as how to create a new schedule. On September 22, 2009, Perless, ESE specialist, reviewed the different roles in ESE with Sinclair, went over the panels in TERMS, and discussed the role of guidance in the area of ESE. After Sinclair received the training and assistance, her performance did not improve at all. She was inept in performing scheduling tasks and continued to assign students to the wrong class. Busjit continued to instruct Sinclair numerous times on the process of scheduling students properly. On December 4, 2009, Lyons discovered the physical education ("PE") waivers2/ were not completed. Lyons provided Sinclair a directive to ensure that all students in need of a PE waiver have one by December 18, 2009. Lyons first instructed Sinclair to perform the task by August 28, 2009, previously extended the deadline to November 13, 2009, and addressed the issue again on November 16, 2009. On or about December 4, 2009, a conference was held with Sinclair, which was detailed in a summary of conference memo dated December 8, 2009. The memo detailed that Sinclair would continue to receive assistance to help improve her performance, but if her performance did not improve, she would be placed on a Performance Development Plan ("PDP"). The next day Sinclair was absent from work. On December 18, 2009, Lyons wrote a memo to Respondent concerning her excessive absenteeism and requested Sinclair to provide a doctor's note justifying her absences since December 9, 2009. On December 19, 2009, Sinclair produced a Return to Work Certificate from Dr. Alvarez ("Alvarez") with a return date to start during the school holiday period, December 21, 2009. On or about January 15, 2010, Sinclair reported that she was taken to the emergency room the previous evening and filed for Family Medical Leave ("FMLA") requesting 12 weeks of leave from work. The request was accompanied by a Certificate of Health Care Provider and stated Sinclair had been treated by Alvarez since 1997 and was unable to perform her duties. On January 15, 2010, while out on FMLA, Sinclair applied for a hardship transfer to another school for the 2010- 2011 school year. On February 19, 2010, while on leave Sinclair also filed a discrimination charge against Lyons and the principal, which was denied. Upon Sinclair's return to work, her inability to perform her duties continued, and she made repeated mistakes. Sinclair failed to submit the students' PE waivers and educational plans after repeated directives from administration. She also failed to complete the Florida Virtual students' list. Sinclair's work was substandard. She could not perform basic routine counseling functions of the job, such as the scheduling of students. Sinclair received a satisfactory performance rating in the Instructional Personnel Assessment System because Broward County Teachers Union contract prohibits any employee from getting less than a satisfactory without first being on a PDP. 2010-2011 School Year Sinclair transferred to Northeast High School ("Northeast") for the 2010-2011 school year. She was assigned the ninth grade and a third of the seniors, who were split between the three counselors. Lupita Wiggins ("Wiggins") was Sinclair's guidance director at Northeast. Before school started, Wiggins asked Sinclair if there were any areas she needed help with and Sinclair requested training in TERMS. Wiggins met with Sinclair at her home and went over TERMS with Sinclair. Wiggins also trained Sinclair about high school graduation requirements since Sinclair had previously worked in guidance at middle schools. Sinclair did not show up to work the first two weeks of school. When she reported to work, Wiggins started noticing that Sinclair was having difficulty in scheduling. In November 2010, Wiggins discovered Sinclair still had not moved the ESOL students from Mercier's class, which she should have completed near the beginning of the year. On January 4, 2011, Wiggins reviewed the process for scheduling students properly with Sinclair again. On January 21, 2011, Sinclair incorrectly scheduled Term 8 courses for Term 9. Sinclair never mastered TERMS and continued to make mistakes such as: placing students in the wrong classes for the wrong quarters, which caused teachers' rosters to be missing students; placing a freshman student in a 10th grade biology class; double booking a student; and placing a non-ESOL student in an ESOL writing class. On January 21, 2011, Wiggins requested a list of ninth graders who had below a 2.0 GPA. Sinclair provided Wiggins a list of seniors who either had been in Apex3/ and were rejected or already scheduled for Apex. Wiggins worked with Sinclair to try to help her understand how to schedule properly and spent over two hours explaining to Sinclair again how to look at the students' credits to determine the courses that they needed. On January 25, 2011, Sinclair supplied another wrong class in Apex by not providing the classes for fourth or second period Apex classes. On February 24, 2011, Sinclair made another scheduling error and the terms did not match up. Sinclair also scheduled one student for American History as a needed graduation requirement, but removed her out of another class needed as a graduation requirement. Wiggins sat down with Sinclair countless times to try to teach her how to schedule students properly. Sinclair continued to make huge errors. On March 9, 2011, Sinclair improperly removed a student out of Spanish II, the second part of the two-year foreign language mandatory requirement to go to a four-year university, and told the student she needed Geometry in the second semester for graduation. The student already had all of her credits for math. On March 28, 2011, Sinclair still had not fixed the TERMS scheduling error brought to her attention by Wiggins on February 24, 2011. Wiggins had to constantly go back and double-check and recheck Sinclair's work, as well as fix it or do it herself. Wiggins also received complaints from parents that Sinclair was being unprofessional and disrespectful. 2011-2012 School Year In the 2011-2012 school year, Sinclair returned to Northeast where her performance issues continued. On or about August 26, 2011, Sinclair was notified of five ninth grade students who she did not place in the appropriate reading class, and Sinclair was instructed to correct the scheduling. Subsequently, Wiggins checked the five students' statuses and Sinclair had only changed one student's status, which was still an incorrect placement. From September 12 to October 7, 2011, Wiggins reviewed Sinclair's senior letters. Thirty-five of them had erroneous information. One letter told a student he was on target for graduation and not on target at the same time. In another letter Sinclair detailed a meeting with a student, who had withdrawn two weeks prior to the meeting date. Sinclair continued to fail to perform her counseling duties. She was still unable to use TERMS, continued to improperly schedule classes for students, and could not evaluate transcripts. She even failed to assign students to core classes. On or about November 29, 2011, Sinclair went out on FMLA through January 3, 2011. Alvarez noted in her doctor's note that she needed to rest. Jonathan Williams became the principal at Northeast and decided to develop a PDP to address Sinclair's ineptitude. On April 24, 2012, Allan Thompson, assistant principal, notified Sinclair by memo that she had been absent since April 19, 2012, and he was unable to write her PDP. Therefore, the meeting was being rescheduled for April 30, 2012, "for the purpose of writing your PDP." Sinclair did not return to work on April 9, 2012, as scheduled. Instead, Sinclair applied for a leave of absence. Principal Williams signed the request but noted that he was in the process of developing a PDP for Sinclair. Sinclair's leave was approved and she was absent from April 9, 2012, through May 9, 2012. Sinclair requested another hardship transfer to another school while out on leave. The transfer was denied. A conference was scheduled with Sinclair to write the PDP on May 11, 2012, but at 7:00 p.m. on May 9, 2012, Sinclair wrote an email stating "due to illness, I will not be in until next week." Sinclair never returned to work in time to write the PDP and she did not receive an evaluation for the 2011-2012 school year because of her days on leave: she did not meet the minimum requirements to get an evaluation. 2012-2013 School Year Sinclair took personal leave for the 2012-2013 school year. Her request stated her reason was "to care for my 88 year old Aunt who is dependent on me for everything. She recently had a fall and is declining health." Sinclair did not receive an evaluation rating for the 2012-2013 school year because she was not in attendance and/or actively teaching one day more than half of the school year, which is the minimum requirement to be evaluated. 2013-2014 School Year In August 2013, Respondent came off leave from Northeast and was placed at Western High School ("Western") because an opening was available after a guidance counselor retired. Principal Jimmy Arrojo ("Arrojo"), assigned her to the ninth grade students since she had previously been a guidance counselor over ninth grade students. On August 7, 2013, Arrojo first met with Sinclair and treated the meeting as an entry interview trying to get to know Sinclair and transition her comfortably into her new position. Sinclair did inform Arrojo that she had previously been placed on a cycle of assistance. Arrojo explained to Sinclair that her job duties included counseling students, scheduling, reading transcripts, placement of students, dealing with problems that may occur, talking with parents, and setting up parent conferences. During the initial meeting, Arrojo provided Sinclair a list of immediate assignments due August 16, 2013. He instructed Sinclair to find the incoming ninth graders at risk report, look up ninth grade graduation requirements, and review her job description and highlight any areas where she thought she might have issues. Lauren Cohen ("Cohen"), Western's school counselor director, was Sinclair's supervisor assigned to guide Sinclair through guidance including registration, evaluating transcripts, and scheduling. In October 2013, Cohen started receiving emails and phone calls from parents requesting a counselor change from Sinclair. Parents would request verification of information Sinclair provided and other parents would report that Sinclair had not responded to them. Mary Jones ("Jones"), assistant principal over the guidance department, also became concerned with Sinclair's performance as a guidance counselor because Sinclair generated numerous complaints from parents and was making mistakes. Jones decided to provide Sinclair extra help to improve her work performance. Sinclair made numerous scheduling errors, improper class placements, as well as calculated incorrect grades and credits for the students assigned to her. Sinclair's errors and failures exposed her students to graduation mishaps. Sinclair also had attendance issues and Arrojo had several informal conversations with Sinclair to help her improve her performance. On December 19, 2013, a mid-year review meeting was held with Sinclair, Cohen and Jones. Sinclair's weaknesses with scheduling, including her inability to schedule students with TERMS, incorrect grades, discipline records, graduation requirements, and credits, were discussed with Sinclair during the meeting. Sinclair's failure and inability to perform her duties continued into 2014. Sinclair was still providing incorrect information to students, placing students in the wrong classes, and improperly evaluating transcripts. The School Board evaluates employee's performances with the Broward Instructional Developments and Growth Evaluation ("BrIDGES") system. The School Board uses iObservation to maintain the observation data. BrIDGES is mutually agreed upon by the School Board and Broward Teachers Union. BrIDGES has an evaluation tool for guidance counselors in sections J through R, which evaluates their day-to-day interactions and responsibilities. During evaluation observations, administrators record ratings based on numeric values that are averaged out based on the calculations that have been determined in the District. There are five different ratings based off of what is observed. Each rating has a numeric value. Innovating is worth 4 points, applying is worth 3 points, developing is worth 2.5 points, beginning is 2 points, and not using is 1 point. The points are averaged to come up with the Instructional Practice Score. Jones was trained on BrIGDES and iObservations. On February 22, 2014, Jones observed Sinclair's day to day activity. She also evaluated Sinclair's interaction with colleagues. Jones rated Sinclair beginning. On March 11, 2014, Jones conducted a meeting observation of Sinclair with an incoming ninth grade registration. During the meeting, instead of properly guiding the student and showing the student the course on the course card, Sinclair asked the student to find the course. Jones rated Sinclair beginning for the interaction since Sinclair did not demonstrate she knew how to map courses on the course card as she had been previously instructed and trained. On April 7, 2014, Jones was dissatisfied with Sinclair's timing and methods used to communicate information skills and rated Sinclair with beginning in the category of promoting positive interactions with students and parents for a classroom incident. The rating was for a parent meeting Sinclair had. She interrupted the instructional flow of the classroom and put a teacher on the spot by calling her during class and questioning her about the student instead of taking a message and facilitating communication between teacher and parent later. On or about April 9, 2014, Jones conducted a 30-minute formal observation of Sinclair's registration of a new ESE student. Sinclair showed up 30 minutes late to the scheduled conference and provided incorrect information about the course and credit. Jones rated Sinclair beginning for the observation because of the errors. On May 1, 2014, Jones assessed Sinclair's evaluation category for collegiality and professionalism, domain 4, and noted that Sinclair "identified ESE student and his needs during registration." She gave her a score of developing. Sinclair's performance as a guidance counselor at Western went up and down. Sometimes she did what was needed to be done. And, more often than not she scheduled students inappropriately. When Jones met with Sinclair to review issues, she would just stare at Jones and not provide an answer to her questions even if prompted and asked a direct question. Sinclair would reply with silence or reply "I don't recall." After her observations for the 2013-2014 school year, Sinclair ended up with an Instructional Practice Score 2.335, which showed she needed improvement. 2014-2015 School Year Sinclair started off the 2014-2015 school year needing to improve her Instructional Practice Score. The District provides support for employees with performance concerns. Tanya Thompson ("Thompson"), evaluation coordinator for the District, was assigned to Western to coordinate support for employees that receive a less-than- effective annual evaluation. Thompson's job is to provide assistance in rectifying the employee's performance deficiencies. Thompson started to assign Sinclair Nardia Corridon ("Corridon") as her fall peer reviewer to provide extra help and coaching, which would improve Sinclair's performance to the District level. However, Sinclair requested that she not get Corridon as her peer reviewer. For the 2014-2015 school year, Cohen oversaw the guidance department and met with all the guidance counselors periodically to address processes and issues. When Sinclair did not grasp the guidance counseling processes, Cohen started working one-on-one with her to explain and show her how each counseling duty should be done. Thompson assigned Gisella Suarez ("Suarez"), to Sinclair from the District as her peer reviewer after Sinclair notified Thompson she did not want Corridon. Suarez was assigned to coach Sinclair and help enhance her job performance. She did not serve as part of the assessment procedure or evaluation process for Sinclair. Even though Sinclair had a weekly peer reviewer, Cohen continued to provide Sinclair school-based support including extra meetings, and making sure that she sat down with her often to go over the different aspects of the counseling job including addressing parent concerns, following protocol for test materials, registering students, evaluating transcripts, scheduling, placing students, and Response to Intervention ("RtI).4/ Cohen documented her support meetings with Sinclair in coaching logs dated August 11, 13, 14, 22, 26, 28, 2014, September 2, 5, 9, 2014, October 29, 2014, November 4, 2014, and December 11, 12, 2014. On August 22, 2014, Suarez started coaching Sinclair and also documented her training sessions by coaching logs each time she met with her. When Sinclair met with Suarez, she shared her final evaluation from the previous year. Suarez used the evaluation to develop the session topics for coaching Sinclair. Suarez met with Sinclair weekly and focused her coaching sessions on all the areas of concern from Sinclair's evaluation. Suarez coached Sinclair on areas such as: contacting and communicating with parents, teachers, and students; facilitating educational planning in her office; and using counseling technology to help look up data on students. On or about August 28, 2014, Sinclair erroneously overrode the system and allowed a student to register for a higher math class because the parent wanted the student in the class. Sinclair should have verified that the class was appropriate by accessing the student's transcript or had the student tested before placing the student in a higher level math class. During the coaching sessions, Suarez would provide Sinclair additional resources to look at or ask her to log on to a database or go to a website. Repeatedly Sinclair did not follow through with the assistance and would inform Suarez that she did not have time. On or about August 31, 2014, the counselors were handling incoming registrations for private school transfers and middle school transfers prior to the start of the school year. Sinclair was not performing her share of registrations because she was not able to get into TERMS for a day and a half. Sinclair had to have her password reset. Jones rated her beginning for waiting a day and a half to gain access to the main working database, TERMS, and have access to check students schedules or appropriately place students. On September 9, 2014, Cohen reviewed RtI with Sinclair and showed her the website for the prevention office and all resources. They reviewed the use of technology on iObservation. Cohen also instructed Sinclair not to blame other counselors when working as a team. Cohen continued to receive numerous complaints about Sinclair not returning emails and phone calls to parents. While observing Sinclair, Suarez would also provide her feedback and suggestions to improve her interactions when she met with parents. Sinclair was generally receptive. However, Sinclair did not follow through with Suarez's suggestions. Sinclair struggled remembering her password to access BASIS, the web based guidance counselors' database to obtain the information for students. On October 6, 2014, Jones conducted a 30 minute formal observation during Sinclair's registration of a foreign student. Sinclair conversed with the student's uncle from the beginning of the meeting to the end about the student's registration without including or interacting with the student. Instead of letting the uncle convey the information to the niece and making her a part of the conversation, Sinclair repeatedly told the uncle, "you can talk to her about this tonight." Jones ultimately interceded in the meeting and pulled up InfoCat, a database utilized to identify foreign speaking students, to pair the new student with a student on campus that spoke the same home language and help transition the student. While coaching Sinclair, Suarez accessed Sinclair's skills with RtI and determined that she could not even go into the database even though she had been a counselor for over four years. Since Sinclair was responsible for RtI, Suarez provided Sinclair a Brainshark webinar from the District's counseling department to assist her in becoming proficient on RtI. The tool detailed the RtI process and included training on how to get on the system, initiate referrals, maintain data on interventions, and how to input information. On October 8, 2014, Suarez suggested that Sinclair register for the District RtI additional training. Sinclair attended the training. On October 10, 2015, Suarez met with Sinclair and used her coaching period with her to view the Brainshark RtI webinar since Sinclair still had not viewed it on her own time although Suarez had suggested it previously. Suarez had to log on to Brainshark because Sinclair could not access it. After the District RtI training and webinar training, Sinclair still struggled with RtI. She was still only able to get on RtI one time independently while with Suarez and continued to forget her password, although she would write her password down, and how to get on the system. On October 27, 2015, Jones observed Sinclair performing domains 2 through 4 and rated Sinclair developing because she did what she was supposed to do. On October 29, 2014, Cohen reviewed transcripts and test codes with Sinclair. Cohen met with Sinclair and went through the process and trained Sinclair again on how to enter grades and what assessment codes to use on a grade transcription sheet. When coaching Sinclair, Cohen had to repeat most topics multiple times. On November 3, 2014, Suarez and Sinclair watched a BASIS webinar to improve Sinclair's performance with BASIS. Sinclair took notes. Suarez also coached Sinclair on Virtual Counselor, a simple web-based program the District has where students, including middle school aged students, teachers and parents have access to student's grades and attendance. Sinclair also struggled with getting into Virtual Counselor and using the system. On November 20, 2014, Jones decided that it was about halfway through the school year so she would conduct an informal observation to see how Sinclair was doing. On December 11, 2014, Cohen met with Sinclair to review the previous assignment to put together a one page sheet with everything a ninth grader would need to know about semester grades including GPA, exams, and end-of-course classes ("EOC"). Sinclair's product did not contain the requested information and when asked to explain the document Sinclair could not explain it to Cohen. Cohen went over the components again and Sinclair took notes. Cohen ended the meeting by quizzing Sinclair. Cohen asked Sinclair if a student passed the nine weeks but failed the exam would they get credit. Sinclair looked at Cohen and would not answer. After being asked three times, Sinclair said no, which was the wrong answer. Cohen explained that Sinclair needed to learn, understand, and master how credits worked as part of her counseling job and she needed to be able to explain it to students properly. On December 12, 2014, Jones and Derek Gordon had a meeting with Sinclair and provided her a summary memo informing her that there were concerns with her job performance and a possible professional growth plan would be implemented. Jones summarized Sinclair's performance of November 20, 2014, informal meeting in the memo. Jones also rated Sinclair as not using for area L; beginning for area M; and not using for area N. The Post Observation Summary memo which stated: There was little interaction with parents during the parent meeting Resources were not provided to the parents No conclusions were drawn or action plan created following conference Based on my observation, I am concerned about your performance. I stated that I would provide you with assistance in order to assist you in improving your performance. I also encouraged you to continue working with your Peer Reviewer, Ms. Suarez. I also have had the opportunity to conduct observations this year. Based on those observations, a rating of beginning or not using have been given in the following elements: Use of Available Technology Participating in District and School Initiatives Supporting and organizing the Physical Layout of the Session Room Collecting and Analyzing Data to Develop and Implement Interventions Within a problem- Solving Framework Know and understand that if these deficiencies are not remediated, you may need to be placed on a Performance Development Plan. On December 12, 2014, Suarez also attempted to meet with Sinclair for their next weekly coaching session. Suarez's plan for the session was to review RtI again and to look at some technology resources for students. Sinclair did not respond to Suarez while she was in the office and finally stood up and opened the door showing Suarez out after approximately 20 minutes. Suarez responded requesting a date for their next coaching meeting the following week. Sinclair informed her she would get back to her. On January 8, 2015, Sinclair left Suarez a voicemail on her cellphone saying that she did not believe she needed her support any further. On January 9, 2015, Jones provided Sinclair a January 14, 2015, meeting agenda which listed topics to be addressed at the meeting, including at risk students, failing ninth grade students, RtI, goal-setting with ninth graders, transcript evaluation, and appropriate placement for scheduling. The email requested Sinclair to "please be sure to come prepared with a list of ninth grade students who have failed the first semester." On or about January 13, 2015, Arrojo met with Sinclair and addressed her attendance. He pointed out she had been absent 13 days and it was only halfway through the school year. He also informed her that she only had less than a day of sick leave left. Arrojo further explained that Sinclair had a pattern of non-attendance because most of the absences were tied to days off, a weekend or a vacation.5/ Arrojo questioned Sinclair about the absences four times and she did not respond or answer. Finally, Arrojo directed Sinclair to report to work on a daily basis and explained that Sinclair's numerous absences as guidance counselor caused problems for the guidance department because unlike a teacher who has a substitute replacement, the other guidance counselors had to pick up Sinclair's work when she was out. On January 13, 2015, Jones also sent Sinclair an email rescheduling the meeting time for January 14, 2015, at 1:30 p.m. On that same day, Sinclair incorrectly added classes for a student in Term 1 when it was second semester Term 2, and the student should have been added to Term 2. Each of the student's classes Sinclair scheduled started with a "1" which represents Term 1 instead of "2", which represents Term 2. On January 14, 2015, Sinclair reported to the meeting with the administrators at 1:30 p.m. and then excused herself to the restroom, came back at 1:45 p.m. and refused to answer any questions without a union representative. After she conferred with the union representative, the meeting began at 1:55 p.m. At the meeting on January 14, 2015, Arrojo observed. Jones requested that Sinclair provide the list of ninth grade at risk students that she had asked for previously on multiple occasions and instructed Sinclair to bring to the meeting for review. Sinclair refused to show the administrators the documentation she was holding in her hands or turn it over for review. It was explained to Sinclair that an accurate compilation of at risk students is important in order to determine which students out of the approximate 800 freshmen need extra help to graduate because credits are lacking, a low GPA, attendance issues, or discipline issues. Sinclair's previous reports on at risk students had varied from 21 to as large as 100. Jones had requested a copy of the list Sinclair was working off to review it for accuracy of criteria and properly identify the at risk students that needed plans formulated to help them. Sinclair would not respond to Jones several requests for the list even after she asked her directly. Sinclair just stared at the administrators with no response. Sinclair finally said 100 plus students were on the at risk list. Jones asked for the list a third time and Sinclair did not hand her the list. Jones asked Sinclair did she look on BASIS, the computer database that contains student data, including a tool that compiles list by areas at risk. Sinclair continued to stare blankly at Jones and not answer her. At some point in the meeting, Sinclair finally asked Jones, "does it matter what list?" Jones explained, "Yes, because on BASIS there's only 12 students and you're saying there's a hundred plus students." During the meeting, Jones tried to get Sinclair to open BASIS to look up the list. Sinclair was never able to open BASIS. Sinclair also failed to provide the strategies for at risk students or discuss interventions with Jones and Arrojo during the meeting. She just stared blankly at and through her supervisors. Sinclair never produced the list. At the end of the meeting Arrojo requested Sinclair leave the list that was in her hand but Sinclair just walked out. On January 14, 2015, Principal Arrojo also provided Sinclair a summary memo of the January 13, 2015, meeting and offered Sinclair employee assistance, which she refused. The memo provided expectations with the following directives: You are expected to report to work on a daily basis. This is an excessive amount of absences that has had an adverse impact on the operation of our school be reminded that attendance is an essential function of your job. All future absences will require you to provide a doctor's note verifying that you were ill. However, providing a doctor's note does not excuse an absence for which you have no accumulated sick leave. In order to try to prevent any students from falling through the cracks, Jones personally took the time to create the at risk list and discovered only 15 students were on the failure at risk list, not the 100 Sinclair claimed. On January 16, 2015, Sinclair received a pre- disciplinary meeting notice regarding insubordination. The letter detailed that Sinclair: refused to adhere to My directive to provide the list of at risk and failing 9th grade students that I requested and you refused to respond to inquiries regarding these students at a meeting held in Assistant Principal Ms. Missy Jones' office on January 14, 2015. During this pre- disciplinary meeting we will discuss your insubordination and failure to respond to inquiries regarding your students and your failure to turn in requested documentation. Prior to being placed on PDP Sinclair was provided District based support to see if her deficiencies could be corrected and job duties could be performed at an acceptable level. She received counseling notes, meetings with the guidance director, peer reviewer, and assistant principal. However, Sinclair was still repeating mistakes, not grasping basic guidance functions, making errors and not making progress with all of the support given. On January 23, 2015, Arrojo provided Sinclair a notice for a January 28, 2015, at 9:00 a.m. meeting "for the purpose of writing your Performance Development Plan." On January 28, 2015, Sinclair reported to Western. Arrojo was waiting for her in his office to meet and she left the school grounds around 8:00 a.m. Sinclair's union representative showed up for the meeting and was not aware Sinclair had left the school premises. On January 28, 2015, a memo was provided to Sinclair from the pre-disciplinary meeting held on January 23, 2015, which stated: [R]efused to respond to inquiries regarding your students and your refusal to turn in requested documentation, I have decided to issue you a Verbal Reprimand. Effective immediately, you are to fully answer all inquiries and you will provide an/all requested documentation from your supervising administrator/s. That same day, Arrojo wrote Sinclair another meeting notice, which she ultimately refused to sign, directing Sinclair to report to his office February 2, 2015, at 1:00 p.m. for the purpose of writing her PDP. Sinclair called out on February 2, 2015. On January 29, 2015, a transfer of support meeting was held. Sinclair requested Corridon to be her peer reviewer instead of Suarez because she had a guidance counselor background. Corridon met with Sinclair and discussed the areas of support needed. On February 2, 2015, Arrojo wrote Sinclair a third meeting notice in an attempt to set up a meeting on February 5, 2015, at 12:30 p.m. for the purpose of writing her PDP. On February 5, 2015, a PDP was created for Sinclair. Sinclair was informed that her Instructional Practice Score was 1.898, in the unsatisfactory range. Sinclair was given a 90-day probationary period letter, which stated "failure or refusal to remediate all areas identified as deficient would be less than effective BrIDGES evaluation and/or termination of contract." The PDP highlighted Sinclair's performance concerns, which included but were not limited to the following: failing to systematically tract academic progress of students who were in danger of failing; inability to get participants to record and represent the exchange of information from interactions with the counselor; inability to consistently access and utilize technology to enhance the quality of services; inability to develop or articulate interventions or providing counseling to develop effective behaviors; and failure to collect and analyze data to develop interventions with the RtI framework. On February 6, 2015, Corridon, the second peer reviewer, started coaching Sinclair twice a week. She reviewed and provided assistance in all the areas Sinclair made an unsatisfactory rating on the PDP. On February 9, 2015, Jones emailed Sinclair to instruct her to read Policy 6000.1, and a meeting would be set soon to discuss the policy. Corridon spent coaching sessions going over and over the same areas of assistance with Sinclair. Sinclair would often forget her password, after writing it down. Corridon went over the RtI process manually and the next time Corridon reviewed it with Sinclair, Sinclair was not be able to follow through the RtI process independently. Sinclair did not demonstrate any consistency and there was not much effectiveness in terms of improvement with regards to performance. After Sinclair was placed on PDP, observations continued to ascertain the status of her work performance and progress. Jones observed Sinclair on March 5, 2015, March 8, 2015, March 30, 2015, April 9, 2015, May 1, 2015, and May 8, 2015. Arrojo observed Sinclair on March 3, 2015, March 9, 2015, March 19, 2015, and April 14, 2015. During the observations, Sinclair consistently continued to make numerous mistakes and rarely was capable of performing her job successfully. As a guidance counselor, Sinclair had an office to work from, was provided the opportunity to attend regular guidance department meetings with the other guidance counselors, sit in on plan reviews, schedule reviews, and share other counselor information together. Even so, Sinclair continued to commit constant errors repeatedly. She did not improve and her mistakes endangered the students' graduation timelines, college entrance opportunities, as well as scholarships. Additionally, she put undue strain on the guidance department by having the other guidance counselors in the department stop their workload, pick up Sinclair's work to get it done or correct her errors. Numerous scheduling and transcript errors had to be corrected by the other staff. Sinclair showed minimal improvement and still could not put basic guidance counseling skills into practice. Instead, she repeated the errors even after extensive coaching and one-on-one training. On March 4, 2015, Western had an incoming ninth grade open house. The event is for incoming freshman and their parents from the middle schools to come and learn about Western. Sinclair failed to show up even though she was required to attend and she did not contact any one to let them know she would not be in attendance. Other guidance counselors had to step in and handle Sinclair's table for incoming freshmen. Sinclair never provided an excuse for her absence. Prior to the open house, Arrojo had informed Sinclair that he would be introducing her to the 1000+ visitors at the event. On March 8, 2015, Jones observed Sinclair and memorialized the observation in a post observation summary memo dated March 18, 2015. Sinclair provided 19 records for 11 students, of which only four were at risk, even though Jones had asked her yet again for the at risk students' list as she had been requesting since January. Sinclair was still not providing the at risk student list so that the intervention plans could be created and implemented to provide the services needed by the students. Jones also requested RtI records with the at risk list. The 19 records were all Sinclair supplied from August 2014 to March 8, 2015. At some point, Sinclair said over 100 students were at risk but she only brought four at risk student records to the meeting of March 8, 2015, not the requested list. Sinclair had very little documentation of her efforts to help the students. Sinclair also failed to be able to list or address the traits of Policy 6000.01 as requested on February 9, 2015. Additionally, when asked, Sinclair was unable to discuss quality points, the points provided for higher-level classes like AP that boost students GPA for graduation. Sinclair needed to comprehend and be able to explain quality points to parents and/or students to successfully perform her job. Sinclair only contacted 20 students in December and 63 in January according to her log. Jones determined the number was low since December is only two school weeks. Out of the 83 students contacted, Sinclair failed to address the need of improving one's GPA, which 520 of the ninth graders also needed her assistance with, as well as her providing them with information. By email on March 9, 2015, Corridon scheduled Sinclair to go to Cooper City High School ("Cooper City") on March 16, 2015, at 9:00 a.m. to shadow Clara Able ("Able"), a guidance counselor, so she could observe her day-to-day activities and be taught more counseling skills. On March 10, 2015, Jones emailed Sinclair and requested she provide additional documentation about some items discussed in the earlier March Policy 6000.1 meeting observation. Jones set a deadline of March 13, 2015. Jones requested the information so that she could properly rate Sinclair from the observation. Jones informed Sinclair that she could provide her more time if she could not have the documents ready by the 13th as requested: You mentioned that you call in students, call home to parents to provide tutoring information, etc. Please provide me with recent documentation that corroborates your outreach efforts. Examples of this could be L27 entries, list of targeted students, phone logs, examples of the tutoring services, etc. You mentioned you shared the Quality Points information with parents/students who come to your office. Please provide documentation of who has received this information and what exactly you share with them. At the meeting, Sinclair provided Jones incomplete L panels6/ and student sign in logs, which failed to have the sign out time for the students and incomplete. Out of the 18 contacts provided, Sinclair was only able to provide records for less than 10 students. The backup materials provided did not provide any details of discussions with students she had met with to utilize later for follow up or documentation. Jones reminded Sinclair during the meeting that she was available to help her if needed and even though she was receiving assistance from site-based coaches and a peer reviewer, there were still on-going concerns regarding her performance. By email on March 13, 2015, Jones scheduled a meeting with Sinclair on March 19, 2015. The email notified Sinclair that the meeting would cover RtI, student registration, and SBBC Policy 6000. The email instructed Sinclair, "As we will need to reference documentation on those topics during the meeting, the meeting will take place in your office. Please be ready to refer to items in your possession on the topics referenced above during our meeting." On March 16, 2015, Sinclair showed up approximately an hour and forty minutes late for her shadow session with Able. By the time Sinclair arrived Able, had left Cooper City and Sinclair did not get the counseling training. On March 17, 2015, Jones provided Sinclair a meeting notice to report to the principal's office on March 30, 2015, at 9:00 a.m. to review her PDP. On March 18, 2015, Arrojo hand-delivered a summary memo to Sinclair from the March 13, 2015, meeting, which stated: Middle school registration took place this week at Indian Ridge Middle School. You came to the middle school with the incorrect course cards. You arrived and placed the Grade 10-12 Course Selection sheets (green cards) on the desk to register the incoming freshmen or current 8th graders. Ms. Cohen, Guidance Director, told you those were the incorrect forms and supplied the correct ones to you (blue cards). The next day, you again brought the incorrect Grade 10- 12 Course Selection sheets and placed them on the desk for the incoming 9th grade students to use. Ms. Cohen, Guidance Director, again removed the forms from the desk and provided the correct ones for you. You were unable to start a testing session for the group of students you were proctoring on March 11, 2015. You were trained on protocols for testing administration on February 26th, 2015. You were a Testing Administrator in a session previously held on March 2, 2015. You reported to the computer-based testing session without your laptop on March 11, 2015. As Testing Administrator, your laptop was required in order to start the session and approve students to begin testing. You were searching for a session code in the bin to begin computer-based testing, unaware that one had to be created once you log in as the Testing Administrator. Ms. Cohen, Guidance Director had to log in as Testing Administrator for the session as you were unable to log in after multiple. On March 19, 2015, Arrojo, Jones, and D. Jones observed Sinclair. She was incapable of explaining how a student earns a credit. She confused semesters with nine weeks and included the EOC calculation percentages when explaining the general course calculations. Sinclair also failed to explain how to utilize the forgiveness rule. Sinclair did not have an understanding of how to use the tool to help students make up credit and replace or forgive a student's original bad grade, which helps improve the GPA of the student who failed. Jones scored her beginning for the meeting. During the meeting, Sinclair also displayed her typical responsive behavior to the administrator's questions. She stared blankly in response to pointed questions. Sinclair never provided the RtI list, even though she had been over RtI during the 2013-2014 school year. Ultimately, Arrojo had D. Jones pull the list and D. Jones took over RtI because Sinclair was incapable of performing the task. On March 20, 2015, Cohen met with Sinclair to follow up on the status of the transcripts that had been previously erroneously handled. Sinclair failed to have them corrected by the March 20, 2015, deadline. Cohen used the meeting to provide coaching on accurate future transcript evaluation. Cohen sat with Sinclair one-on-one and went through each folder and listed with her what needed to be done to award the students credit as well as provided examples. Cohen reminded Sinclair to indicate student name and student number, use designated colors to highlight grade level credit earned, and add appropriate assessment codes to EOC courses. During the coaching session, Cohen also pointed out transcript and registration errors. One such error discussed was Sinclair awarding half of a credit to a student when Dade County clearly stated the student was in Term 1 or Quarter 1 and the student could not have earned a credit yet. Cohen never received the requested transcripts. Cohen suggested Sinclair check her drawers for the missing transcripts and Sinclair became upset. The transcript information was not available to be entered into the system and students were not properly placed or were in statuses to miss credits for graduation. The guidance department also had to request transcripts from prior schools a second time because of Sinclair not supplying the transcripts. Sinclair's deficiencies in her performance as a guidance counselor continued almost on a daily basis. On March 30, 2015, a meeting was held to review Sinclair's PDP. Sinclair's Instructional Practice Score had improved minimally to 2.043, needs improvement. The meeting ended with Arrojo agreeing to continue to provide Sinclair observations and coaching in an attempt to help Sinclair improve her work performance. On April 2, 2015, a memo was written regarding the March 30, 2015, meeting outlining Sinclair's ongoing performance issues. The memo detailed the following observations: During the observation, Ms. Sinclair could not identify students that she was the case manager for and therefore, unable to provide strategies for improvement. Ms. Sinclair was able to log in to Virtual Counselor but was not familiar with the RtI layout in Virtual Counselor. During the observation, Ms. Sinclair continued to click on the screen hoping to navigate through the website. Mr. Sinclair was unable to describe how a student earn a credit. In speaking, Ms. Sinclair included the EOC calculation percentages while explaining the general course calculations. On April 7, 2015, Jones conducted a formal observation meeting with Sinclair. A new student from a private school was being registered and enrolling as an incoming ninth grader. Sinclair showed up 15 minutes late without any explanation or apology for tardiness. Sinclair recommended four out of the six classes that were closed to the student. The four classes were all on the closed class list Sinclair had been provided both by a printed copy on April 6, 2015, and emailed on March 30, 2015. After the registration observation, Jones asked Sinclair for the closed class list provided to her. Sinclair had it taped to her desk but she did not use it when registering the student. Jones asked Sinclair to tell her which classes she had recommended to the parent and she could not answer. Sinclair also could not find the student's name in Virtual Counselor. Sinclair's work continued to be unsatisfactory because she failed to competently perform her duties as a guidance counselor; failed to communicate appropriately with students, colleagues, administrators and parents, which caused numerous complaints; stared and refused to acknowledge conversations with administrators; failed to have command of her area of specialization as guidance counselor with the repeated errors. Additionally, she made the same mistakes over and over and did not show improvement or competency. On April 9, 2015, Corridon provided Sinclair's last coaching session. In April, Jones was still trying to get the list from Sinclair of students who failed the first semester even though it was late in the year to start addressing the struggles of failing students. On April 28, 2015, Jones conducted a formal observation and requested Sinclair go through the process of creating a referral in RtI. Sinclair was able to login to the referral database but clicked from screen to screen, unable to either navigate the database properly or record key information. Sinclair also failed to navigate resource sites necessary to provide students resources for assistance. Jones rated Sinclair a beginning for the exercise. On May 1, 2015, a post observation conference was held with Sinclair to discuss the observation of April 22, 2015. Sinclair, David Olafson, and Jones attended. Jones shared the findings from the Marzano observation system, which Sinclair obtained beginning/not using datamarks in design question 2, element 12 and elements M and Q. Specifically, Jones documented the following observations in the memo: Lack of familiarity with the BASIS database when entering students and other pertinent information. The counselor advises students to visit certain websites to begin to do better in school. The students receive no handout with key points or an overview of what the website offers. The counselor does not diversity the resources offered to students in danger of failing and the do not address they students deficiencies. Students in danger of failing were expected to create their own plan for success. Some students have been in danger for failing all year and were not seen until April 2015. On May 6, 2015, a meeting observation for domains 2 through 4 was conducted. Sinclair was asked to pull up the presentation she used for incoming freshmen to discuss graduation requirements. She was not able to find the document after multiple tries. On May 8, 2015, a post observation conference was held to discuss the results of the 30-minute observation held on May 6, 2015. Jones outlined Sinclair's ongoing performance concerns and numerous errors, as well as improper actions, which included Sinclair: improperly inputting 21 out of 38 transcripts reviewed; failing to monitor and assist three students in danger of failing by only meeting with each of them one time in April; failing to review the TERMS panels with each student along with Virtual Counselor; failing to assess the student's deficiencies incorrectly so was unable to offer additional services to the student, which impacted student's placement and graduation status; failing to look at two student's L panels to review their history and help develop the direction to proceed; and failing to provide services to a student who indicated problems at home. That same day Jones notified Sinclair to report to the principal's office on May 15, 2015, for the final review of PDP. On May 15, 2015, Sinclair's final review was conducted. She never was able to perform the basic functions of counseling. Sinclair failed to do the job and her ineptitude continued throughout the PDP process. Sinclair's final Instructional Practice Score was 1.974, unsatisfactory. As a result, Arrojo recommended Sinclair for termination based on her failure to correct her performance deficiencies during a 90-day PDP. After Sinclair left Western, the missing transcripts Cohen had requested from Sinclair and instructed her to look for were found in Sinclair's office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Broward County School Board, enter a final order: dismissing the charge of violation of rules 6A- 5.056(2)(a); finding Respondent in violation of rule 6A-5.056(2)(b), (c), (d), and (e); rule 6A-5.056(3); sections 1012.33, 1012.53(1) and (2); and School Board Policy 4008(B). upholding Respondent's suspension without pay and termination for just cause. DONE AND ENTERED this 10th day of March, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2017.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Edna Jane Bowman, should be terminated from her position as a teacher with the Duval County School Board (DCSB) for good cause, based on alleged incompetence, as that status is defined at Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (Tenure Act).
Findings Of Fact The Respondent has been a full-time "tenured" teacher for the School Board during the 2007-2008 and 2008-2009 school years and for a total of 28 years. She is certified by the State Department of Education in the area of Social Studies, grades five through nine, as well as other fields such has History (grades six through twelve). Like other teachers in the School District, her performance was evaluated annually by the principals of the schools where she taught. During the relevant school years, referenced above, the Teacher Assessment System (TAS) was the primary method used for evaluating teachers. John Williams has 39 years of experience in the field of K through 12 education and is the Board's Director of Professional Standards. He is familiar with the TAS and manages the District level officials who are responsible for proper administration of the TAS in teacher evaluation. The TAS measures teaching performance based on nine different "Competencies." These include: Promotes student growth and performance. Evaluates instructional needs of students. Plans and delivers effective instruction. Shows knowledge of subject matter. Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline. Shows sensitivity to student needs by maintaining a positive school environment. Communicates with parents. Pursues professional growth. Demonstrates professional behaviors. (See Petitioner's Exhibit 22, in evidence). Teachers are evaluated by a school administrator, typically the principal, based on two formal classroom observations, which are announced to the teacher ahead of time. The Teacher Assessment Instrument (TAI) is used to collect data and identify indicators associated with each competency criterion. In evaluating a teacher's performance, administrators or principals may also employ informal, unannounced observations and use the results thus obtained in evaluating the teacher's performance. The "Evaluation of Professional Growth of Teacher" is an evaluation form used during the final annual evaluation conference. The form reflects the teacher's final rating as to each competency area and also reflects the teacher's overall performance rating for the school year. The TAS delineates the steps in conducting a performance assessment or evaluation of the teacher beginning with an instructional session and a pre-observation conference and then proceeding with the observation process. If a teacher demonstrates deficient performance in any competency area, a "success plan" is written in collaboration with the teacher. Although the success plan may be implemented at any time, it must be implemented by February 1st of a given school year for teachers who have the potential to receive an overall annual rating of "unsatisfactory." A success plan identifies areas of weakness by competency category, sets out objectives to be achieved, and provides timelines to meet those objectives. A success plan team is assembled and, in addition to the teacher, it is typically composed of school administrators, teachers with expertise in a subject matter that the deficient teacher is struggling with, and "resources teachers" or "coaches." The various steps and procedures in conducting a success plan and success plan team effort is delineated in the TAS, shown in Petitioner's Exhibit 22, in evidence. Ms. Bowman worked at Jefferson Davis Middle School (Jefferson Davis) during the 2007-2008 school year. Mr. Addison Davis was principal of Jefferson Davis. Mr. Davis made multiple informal observations of Ms. Bowman's teaching and provided her with his opinions, based on his observations, including concerns he had about a lack of lesson plans and failure to implement a District-wide "workshop model." The workshop model requires classroom activities where small groups of students work collaboratively to complete an activity or project and achieve certain curriculum student standards. Mr. Davis explained that model is particularly effective for students whose primary language is not English. Several of such students were assigned to Ms. Bowman's classes during that school year. Principal Davis also noted that the Respondent did not provide students with academic and behavioral expectations, did not adequately assess student performance and failed to use student portfolios. He opined that he observed a disconnection between student needs and the instruction provided, intended to serve those needs. Mr. Davis also observed a lack of instruction in some instances, in which students were directed to sit down, be quiet, or read portions of a text book. Due to observed deficiencies, a Success Plan was put into place on November 8, 2007, with Ms. Bowman's input. The Success Plan outlined areas of weakness, objectives toward improvements in those areas, with timelines. The Success Team included experienced teaching coaches who were available to model appropriate instruction for Ms. Bowman on several occasions. Ms. Bowman opposed the Success Plan, viewing it as unnecessary, essentially as harassment by the School District's administration. She failed to attend any of the bi-weekly meetings which were held throughout the entire school year. Mr. Davis also conducted two formal observations on December 10, 2007 and January 30, 2008. He met with Ms. Bowman before each formal observation to set a date for the observation and to discuss the lesson plan to be observed. They discussed the data related to the lesson plan, showing the relevance of the lesson to student needs and showing how student learning would be assessed. Ms. Bowman, however, failed to provide any assessment data, and, in lieu of that information, she submitted a "District Learning Guide" from three years past, which was not sufficiently related to the 2007-2008 curriculum. During the formal observation, Mr. Davis witnessed a period of 25 to 30 minutes during class time when there was no instruction. He saw students asleep at their desks and some arguing between the teacher and several students. He observed that there was a continuing failure to implement the "Workshop Model" and to provide students with academic and behavioral expectations. He saw a lack of assessment of student performance and a failure to use student portfolios. There was a continued disconnection between student needs and the instruction being given, supposedly to serve their needs. Mr. Davis gave the Respondent a number of warnings about the above-referenced deficiencies, based upon his observations, and their post-observation conferences. He encouraged the Respondent to participate in her Success Plan but she continued to refuse to cooperate. Ms. Leslie Sarjeant was an instructional coach and Success Team Member. She corroborated the fact that Ms. Bowman rejected the Success Plan process and did not participate. Rather than participating in the Success Plan for her own remediation Ms. Sarjeant described Ms. Bowman as railing against what she believed were the ill motives of the DCSB in criticizing her performance and embarking on the Success Plan process, which she believed was a pre-conceived effort to terminate her. The TAI forms completed by Principal Davis, and others completed by Assistant Principal Torrence, showed Ms. Bowman's failure to demonstrate competencies in promoting student growth and performance, evaluating instructional needs, and planning and delivering effective instruction. Mr. Davis then issued a "Notice of Potential Unsatisfactory Performance" to the Respondent on January 2, 2008. The evaluation of the Respondent was issued on January 31, 2008, reflecting unsatisfactory performance in the following competency areas: promoting student growth and performance, planning and delivering effective instruction, and demonstrating professional behaviors. Mr. John Williams, a District administrator, issued a formal Notice of Unsatisfactory Performance on May 7, 2008. In accordance with DCSB policy, after a first such unsatisfactory rating, he gave the Respondent the option to transfer to another school. Ms. Bowman elected to transfer to Southside Middle School, to teach seventh grade Social Studies and Geography for the following school year, 2008-2009. Ms. Bowman introduced a satisfactory evaluation of her teaching by Principal Davis, for the school year 2005-2006, in order to attack his credibility concerning the testimony about the unsatisfactory performance. This evaluation was done shortly after Principal Davis had been assigned to Jefferson Davis, in December of 2005. She maintained that he changed his opinion only after she wrote a letter to a local newspaper critical of DCSB administration, concerning certain policies regarding student attendance, discipline, promotion, etc. She did not, however, criticize DCSB administrators, and particularly not Principal Davis personally. This contention is not persuasive because Ms. Bowman, in past years, had also made similar accusations that other school administrators/principals had retaliated against her by the use of performance evaluations. She, for instance, raised concerns in a memorandum to the DCSB's human resources office in which she contended that the administration was using her evaluations, in 2004, as a means of retaliation. The contention that Principal Davis was retaliating against her at Jefferson Davis Middle School because she wrote the letter to the local newspaper is less than credible, inasmuch as these other complaints as to retaliation, as to her past evaluations, arose in earlier school years (2004-2005), and the other referenced events at Jefferson Davis Middle School occurred before Principal Davis was ever assigned to that school. The principal at Southside Middle School (Southside) during 2008-2009 school year was Ms. Latanya McNeal. She has 14 years of experience in education, with eight years as a school administrator. Because the Respondent received an unsatisfactory evaluation for the prior year, and in light of her early observations of Ms. Bowman, Ms. McNeal initiated a Professional Development Plan (PDP) on August 28, 2008. Ms. Bowman signed acknowledgement of that plan. The PDP stressed the importance of: (a) maintaining and developing lesson plans based on student data/assessment of needs; (b) maintaining and using classroom materials tied to academic standards; (c) effectively using portfolios containing student work tied to curriculum and academic standards; and (d) continuous use of the workshop model. Although these were announced ahead of time, and despite Ms. Bowman's knowledge of the PDP and the Southside Classroom Observation Checklist, outlining duties she should perform, two subsequent informal observations on September 3, 2008, and September 24, 2008, revealed little progress toward the goals stated in the PDP. The observation checklists and "observation follow-up forms" for each observation showed the following deficiencies: "teacher needs to plan lessons that align to the standard"; "no instruction, students given worksheets, no connection to standard or text"; (c) "no workshop model, no evidence of portfolios"; (d) "no evidence of instruction"; (e) "presents a negative student/teacher environment . . .". After observation of these deficiencies on these occasions, a Success Plan for the Respondent was created and initiated on November 3, 2008. The Success Plan included all the concerns outlined in the PDP and focused on data-driven instruction, use of portfolios, assessment of student needs, measurement and explanation of student progress, and use of the CHAMPS program. The CHAMPS program is classroom management program used through out the School District. All teachers, including the Respondent, have been trained in its use. A "Success Plan Team" was established, consisting of Principal McNeal, other administrators and teachers, as well as a reading coach and an instructional coach. Regularly scheduled meetings were announced, held, and attended by most members of the team. The Respondent did not cooperate with the efforts of the Success Plan Team. At the first meeting she refused to speak about the plan, but insisted upon discussing and discrediting the evaluations of her by Principal McNeal. The Respondent was provided training and technical support with two computer programs, Compass Odyssey and FCAT Explorer. These are used to assess student needs and to track student progress. Despite the training and the need to use data to drive instruction, the Respondent never used either program or other student assessment programs. She acknowledged and expressed appreciation for the support and assistance provided to her by the Success Team members, but rejected the idea that instruction can be individualized based on student needs. The Respondent also failed to institute a portfolio system and refused to observe another teacher conducting a teacher-parent conference. As of January 30, 2009, five months into the school year, the Respondent had not yet submitted a five-day lesson plan, as required of every teacher at Southside. After conclusion of the Success Plan; Ms. Bowman complained that she was being singled out for purposes of termination. Although the Success Plan was noted as completed on February 25, 2009, Ms. Bowman did not integrate the plans, strategies, or objectives into her classroom instruction. Principal McNeal conducted two formal observations on December 22, 2008, and March 11, 2009. Before each formal observation she met with the Respondent to identify a date for a formal observation and to discuss the lesson plan to be observed, the data tied to it, showing student needs, the relevance of the lesson, and how student learning would be assessed. Implementation and use of portfolios, small group workshop models, and the CHAMPS program were also discussed. During the formal observations, Principal McNeal observed and documented on the TAI forms that no evidence of student portfolios existed. There was no evidence of differentiated/workshop instruction or data to guide instruction. There were incomplete grade books and no assessment of learning. There was no evidence of use of the CHAMPS program and it was noted that the Respondent engaged in "shouting matches" with students. She allowed one student to sleep throughout the observation, only to yell "wakeup" at the student when someone came to the door to pick the student up. A progress report, dated March 5, 2009, shows that a substantial number of Ms. Bowman's students were failing. The progress report shows that her students had only three graded items from January through March 5, 2009. One of these was an undefined "extra credit" entry. In her first class she had 16 students. Five of those students had F's and two had D's. In her second class she had 24 students with 13 having F's and two with D's. In another class of 28 students, nine had F's, four had D's, and two had no grades at all. See Petitioner's Supplemental Exhibits 32 and 33, in evidence. Although Principal McNeal discussed these and other concerns with Ms. Bowman, at the post-observation meetings, her concerns were unaddressed. Ample opportunity was given the Respondent during that school year to take part in training and workshops. The absentee report showed that 14 of Ms. Bowman's absences that school year were taken for training and workshops. She was also given the opportunity to have instructional and reading coaches come into her class, prepare lesson plans with her and model instruction for her. According to Ms. McNeal, however, as well as Instructional Coach Shakethia Butler, the Respondent rejected the idea of collaborating with others in planning and instruction. On March 13, 2009, Principal McNeal issued the Respondent's evaluation for the year. It showed unsatisfactory performance as to the following competencies: (a) promotes student growth and performance; (b) evaluates instructional needs of students; (e) utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; (f) shows sensitivity to student needs by maintaining a positive school environment; and (g) communicates with parents. The Respondent received and signed that annual evaluation, but did not accept its contents and wrote a notation on the document to the effect that the evaluation was done on the second day of the FCAT testing and that the principal had not followed the evaluation schedule. However, both the Director of Professional Standards, John Williams, as well as Principal McNeal, established that observations are permitted on FCAT test days and that the FCAT had only been administered in the morning. That left the Respondent with more than three hours of instructional time in the afternoon during which she could be observed. Moreover, the conference form signed by Ms. Bowman on March 6, 2009, indicated her agreement with and approval of the March 11, 2009, observation date. As was the case with Principal Davis, the Respondent attacked the credibility of Principal McNeal, and the evaluation she prepared, with the argument that the evaluations were a pretext for retaliation against her based upon her "outspoken attitude." Ms. Bowman's work history shows a pattern of similar accusations of retaliation against several other principals at other schools where she taught. Thus, she accused the principal at Eugene Butler Middle School of giving her poor evaluations based upon "lies and revenge." She made accusations that she was retaliated against regarding matters concerning her evaluation for "being outspoken" and complained of being treated unfairly and harassed while at James Weldon Johnson Middle School. She accused the principal at yet another school, (J.E.B. Stuart Middle School) of conjuring up false evaluations of her based upon race discrimination, because, as she testified at hearing, discrimination had occurred "because everyone involved was African-American." She also made complaints, as found above, regarding her 2004-2005 teacher evaluations at Jefferson Davis Middle School as being based on retaliation. This was before Principal Davis was assigned to that school. In summary, the Respondent has demonstrated the above- found deficiencies in the competency areas referenced. This ultimately resulted in the two successive unsatisfactory evaluations, in two successive school years. The parties have stipulated that, under the Tenure Act, two successive unsatisfactory annual evaluations can provide grounds for termination of employment as a teacher. Moreover, when the above-found plans and efforts to help the Respondent improve her performance were inaugurated, the Respondent fairly consistently refused to cooperate with that performance improvement process.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Duval County School Board terminating the Respondent's employment as a teacher. DONE AND ENTERED this 12th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2010. COPIES FURNISHED: David J. D'Agata Assistant General Counsel General Counsel's Office City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Edna Jane Bowman 1043 Talbot Avenue Jacksonville, Florida 32205 Ed Pratt-Daniels, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182
